September 11, 2002; School District 333 (Ogilvie)
9/11/2002 10:16:43 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 July 8, 2002, IPAD received a letter from X and Y. In this letter, X and Y asked the Commissioner to issue an advisory opinion regarding their rights with respect to certain data maintained by Independent School District 333, Ogilvie. X and Y's request required clarification with IPAD staff. In response to X and Y's request, IPAD, on behalf of the Commissioner, wrote to the District Superintendent. The purposes of this letter, dated July 17, 2002, were to inform him of X and Y's request and to ask him to provide information or support for the District's position. (That letter was addressed to the former Superintendent; the letter was faxed to Jon Knopik, current Superintendent, on August 2, 2002.) On, August 5, 2002, IPAD received a response from Mr. Knopik. A summary of the facts of this matter follows. X and Y are parents of District students. According to X and Y, they made a complaint about what they believed to be a violation of the District's policy regarding sexual harassment. They stated to the Commissioner: As we understood, according to the Ogilvie [Student] Handbook, a verbal complaint would be acceptable. Although, when we met with Human Rights Officer Nancy Jahnke, . . . she called Principal Furman and Assistant Principal Stejskal into her office with us. They all continued to insist we put everything in writing although we were hesitant. At this time, it was Principal Furman and Ms. Jahnke who assured us about Data Privacy and we were convinced by all three administrators [sic] comments, our complaint was in complete confidence . . . . Ms. Jahnke then found an obsolete form that she said we could complete to get our complaint in writing. Which we did upon their insistent request and continued assurance that this was for our protection according to data privacy. According to X and Y, the District formed a committee to investigate their complaint. They stated: Realizing that the administration and school board had no intentions of taking our concerns seriously . . . [Y] wrote a letter to the editor expressing concern for this districts [sic] lack of effectiveness in dealing with students and their families. We decided it was in our children's best interest, for their peace of mind and anonymity, to use [Y's] maiden name on this letter. Absolutely no one in this community knew this private information . . . . The school board called a special meeting to discuss X and Y's complaint, to which they were invited by the board chair. A member of the local media also attended. X and Y stated to the Commissioner: When [the board chair informed them of the meeting], she never advised us they intended to share our names to anyone, we still believed we were assured of our privacy due to the fact we still had . . . children attending school in this district. And as we understand, the privacy of parents of students is also protected information. We were not given the names of the committee members chosen to research the material, just as they were not given ours, per our original understanding as stated by the school administrators. We never received a phone call, written advisement or any type of warning that our families [sic] name was going to be released to the public. We understand now that a Tennessen warning would be required in a case such as this. We absolutely never received any such warning. Principal Furman opened the meeting . . . and intentionally and willfully gave out our name. As we understand it, the only statement that needed to be released was that a parent or community member had made a complaint, as Ms. Furman had done at two earlier board meetings when this subject was brought up. X and Y also stated [i]t was brought to our attention that on Thursday afternoon and Friday of March 21 and 22, that private information was being spread by administrators, staff and others at the school, to the effect that it was [Y] who had written a letter to the editor using her maiden name and it was we, who made a complaint . . . . They stated that a District student told Y that a teacher discussed the complaint and identified Y as the complainant with her entire first hour class. [Y] later discovered it was Principal Furman who confirmed our identities to this teacher and other staff members. The complaint form X and Y refer to is entitled Addendum #1, Independent School District #333, Request for Reconsideration of Instruction/media Materials. The form asks for name, address and telephone number of the person(s) who initiate the request for reconsideration. The form includes the following questions:
1. To what in the materials do you object? (Please be specific)
There is no statement on the form regarding the classification of the data requested. In his comments to the Commissioner, Mr. Knopik stated that because X and Y spoke at Open Forum in a school board meeting and wrote several articles in the local newspaper, they were the ones who made this a 'public' issue, not the school district. Any accusation that the school violated their right to privacy seems misdirected considering it was their action that drove this into the public arena. Mr. Knopik further stated:
In response to specific issues:
Issues:In their request for an opinion, X and Y asked the Commissioner to address the following issues:
Discussion:Issue 1Pursuant to Minnesota Statutes, section 13.04, was Independent School District 333, Ogilvie, required to provide a Tennessen Warning to X and Y when it asked them to submit a complaint in writing? Data on parents are private, pursuant to section13.32, subdivision 2 (c). When a government entity asks an individual to supply private data about him/herself, the entity is required to give the individual a notice. (This notice, commonly referred to as the Tennessen Warning, must advise the data subject of the following: 1) the purpose and intended use of the requested data within the collecting entity; 2) whether the individual may refuse or is legally required to supply the requested data; 3) any known consequence arising from supplying or refusing to supply the private or confidential data; and 4) the identity of other persons or entities authorized by state or federal law to receive the data. See section 13.04, subdivision 2.) The District asked X and Y to submit their complaint in writing, i.e., the District asked X and Y to provide private data about themselves (their names, addresses, home telephone numbers, and their opinions about materials they find offensive), thus triggering the Tennessen Warning requirement. The purpose of the Tennessen Warning is to insure that individuals are able to make informed choices about supplying data concerning themselves to the government. If an individual is not notified that certain data s/he is asked to supply may become public, the person cannot make an informed choice. From the information provided, it appears that the District did not provide X and Y with a Tennessen Warning, as it was required to do. Issue 2Pursuant to Minnesota Statutes, Chapter 13, was it appropriate for the District to identify the complainants, who are parents of District students, to various District staff? Pursuant to Minnesota Statutes, section 13.02, subdivision 12, private data are not available to the public. Further, Minnesota Rules, part 1205.0400, provides that private data are available to individuals within the entity whose work assignments reasonably require that they gain access to the data. In the case of this opinion, the data at issue are classified as private. X and Y stated that it was brought to our attention that . . . private information was being spread by administrators, staff and others at the school. Mr. Knopik stated there is no evidence that their identities were released regarding any complaint. My understanding is that the (public) newspaper articles were discussed. X and Y and Mr. Knopik disagree about whether the District inappropriately identified X and Y to District staff, a factual disagreement which the Commissioner is unable to resolve. If the District identified X and Y as the complainants to District staff whose work assignments did not reasonably require access to such data, it was not appropriate for them to do so. Issue 3Pursuant to Minnesota Statutes, Chapter 13, was it appropriate for the District to identify the complainants to District students? As discussed above, data the District maintains about X and Y's complaint are private. If District staff identified X and Y as the complainants to District students, or otherwise disseminated private data about X and Y to District students, it was not appropriate for them to do so. Issue 4:Pursuant to Minnesota Statutes, Chapters 13 and 13D, was it appropriate for the District to identify the complainants in a public meeting? As discussed above, the District was required to provide X and Y with a Tennessen Warning when it asked them to provide the data on the complaint form. The District apparently failed to do so. Pursuant to section 13.05, subdivision 4, private data on an individual shall not be collected, stored, used, or disseminated for any purposes other than those stated to the individual in the Tennessen Warning, with certain exceptions. Accordingly, in general, the District is precluded from using or disseminating anything contained in X and Y's complaint. However, one exception to that general rule is provided at section 13.05, subdivision 4 (e): [p]rivate or confidential data on an individual may be discussed at a meeting open to the public to the extent provided in section 13D.05. Therefore, to the extent it may be applicable, a Tennessen Warning should include a statement that the data at some point may be subject to disclosure in a public meeting. Pursuant to section 13D.05, subdivision 1 (b), not public data may be discussed at an open meeting if the disclosure relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business or agenda item before the public body. According to section 13D,05, subdivision 2, a meeting must be closed if educational data (per section 13.32), are discussed. Prior to 1999, data on parents were defined as educational data under section 13.32, subdivision 2. That year, the Legislature amended section 13.32, subdivision 2 , by deleting the language in clause (b) that stated that data concerning parents are educational data, and adding clause (c): [d]ata concerning parents are private data on individuals . . . . (See Session Laws for 1999, Chapter 227.) The District claims that X and Y themselves publically disclosed the data involved, thus freeing the District to do the same. However, even if that were the case (which the Commissioner cannot determine), it would not excuse the District's obligation to protect the data it holds about X and Y, which are private data on individuals under section 13.32. The District could disclose private data on X and Y at a public meeting if the disclosure related to a matter within the scope of the District's authority and if it was reasonably necessary to conduct the business or agenda item before the District. The Commissioner has the following comments. It is clearly within the scope of the District's authority for it to consider a complaint made against the District. It is not as clear, however, if, in order to consider that complaint, it was reasonably necessary for the District to identify the complainants. According to X and Y, when the subject was raised at earlier public board meetings a statement was made that a parent or community member had made a complaint. In the Commissioner's view, the District could reasonably have discussed the substance and merit of the complaint without publicly identifying the complainants. One final note is in order. Mr. Knopik, in his response to the Commissioner, included some private data about X and Y that the Commissioner did not need to render his opinion. The Commissioner encourages the District and all other responding government entities to limit their comments to that information which is relevant and necessary to the opinion issue(s). Opinion:Based on the facts and information provided, my opinion on the issues raised by X and Y are as follows:
Signed:
David F. Fisher
Dated: September 11, 2002 |
Educational data
Tennessen warning
Closed meetings
Open Meeting Law
Open meeting
Educational data
Purpose of notice - informed choice
