March 13, 1995; School District 270 (Hopkins)
3/13/1995 10:14:43 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:For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.On February 6, 1995, PIPA received a letter from Mr. Robert C. Moilanen, in which he provided details concerning his attempts to gain access to certain data maintained by the Hopkins School District #270, hereinafter District, and in which he stated his wish to file an appeal of a denial of access to data maintained by the District, pursuant to Minnesota Rules Part 1205.1600. Mr. Moilanen submitted considerable documentation of his correspondence with the District. He sought access to data related to elementary school boundary issues, involving three single family home developments which are under construction within the boundaries of the District. In response, PIPA wrote to Mr. Moilanen to clarify that the subject matter of his appeal was not within the appeal right which is detailed in Part 1205.1600. That right is limited to an appeal of an adverse determination regarding a challenge to the accuracy and completeness of data on individuals maintained by a government entity. PIPA also informed him of the authority of the Commissioner to issue advisory opinions. On February 23, 1995, PIPA received another letter from Mr. Moilanen, in which he referred to his earlier submission, and asked the Commissioner to issue an opinion, as described in the Issue section below. Mr. Moilanen, as part of a larger data request on November 3, 1994, had asked the District to provide him with access to ...all data reflecting or pertaining to meetings held by and between employees, board members or representatives of the Hopkins School District and employees, officers, directors, agents, investors or representatives of the developments including, without limitation, all pertinent calendars, diaries or memos reflecting such meetings. According to correspondence between Mr. Moilanen and the District, he received all of the data he requested, except for data pertaining to meetings between school board members and developers. The District said that it ...found that no such data requested exists.... although [o]ne of the board members does maintain a log of telephone calls received at that board member's residence, and the log does reflect one telephone message which was received from a representative of one of the developers. There are no notes regarding the substance of any conversations. In response, Mr. Moilanen requested the identity of the board member who had received the phone call, and the date and time of the call. The District's response to this request stated that they would not release the data, for two reasons. First, the District stated that it was not clear that the data were government data as that term is defined in Minnesota Statutes Section 13.02, subdivision 7. The District described the telephone log as ...a personal telephone log kept of personal telephone messages maintained by the board member. While it is difficult to draw the line between data which is government data and data which is not...we believe that information of this kind that is originated and maintained at the board member's private residence is not government data. The second reason the District offered was that ...if the telephone log were found to be government data, we believe that that telephone log would reflect correspondence between an elected official and a constituent under Minn. Stat. section 13.33. As such, the log would contain private data on individuals and need not be disclosed to other parties. In response to Mr. Moilanen's request, PIPA, on behalf of the Commissioner, wrote to Mr. Michael Kremer, Superintendent of the District. The purposes of this letter were to inform Mr. Kremer of Mr. Moilanen's opinion request, to provide a copy of the request to him, to ask Mr. Kremer or the District's attorney to provide information or support for the District's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On March 7, 1995, PIPA received a letter of response from Ms. Terri L. Groen, attorney for the District. Ms. Groen reiterated that the District's reasons for denying access to the data in the telephone log were: (1) it was not clear to the District that the data are government data, and (2) if the data are government data, then they are classified as private under Section 13.33. Concerning the District's first reason for denying access, Ms. Groen stated that ...a School Board member received a recorded telephone message at the Board member's personal residence...[which] was transcribed to a log which is kept by the Board member and other members of the household to make sure that telephone messages are relayed to the appropriate person in the household.... (District's emphasis.) She further explained that ...the telephone log contains information concerning the board member's entire family and is viewed by the board member and the board member's family as a purely private document which is intended to make sure that private telephone messages get relayed to the correct family member....It should also be noted that the information at issue is not maintained by the Board. It does not form a part of the Board's records in this case and is not necessary to form a complete record pursuant to the Official Records Act. Minn. Stat. section 15.17. This further supports the argument that the information is not government data within the meaning of [Chapter 13.] In support of the District's second reason for denying access to the data in the log entry, Ms. Groen said that if the data were in fact government data, then they would be classified under Section 13.33, which classifies correspondence between elected officials and individuals as private data. In reference to Mr. Moilanen's objection to the application of this Section on the basis that the log is not correspondence, i.e. written communication, Ms. Groen stated that [t]his interpretation is very narrow and ignores the reality of everyday life in which many communications are commonly run through telecommunications systems (eg. faxes, e-mail, voicemail).
Issue:
In his request for an opinion, Mr. Moilanen asked the Commissioner to address the following issue:
Discussion:
This discussion must begin with an examination of the definition of government data. Section 13.02, subdivision 7, states: [g]overnment data means all data collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media or conditions of use. (Section 13.02, subdivision 11 defines political subdivision to include school districts, and any boards created pursuant to law.) Therefore, clearly an employee or official of a school district, such as a school board member, can collect, create, receive, maintain or disseminate government data.
The District, as part of its assertion that the data in the log were not government data, emphasized that the log is maintained at the board member's residence. The Commissioner addressed the issue of whether the location of data maintained by an agent of a government entity affects the definition of the term government data in Advisory Opinion 95-008, which stated:
Therefore, the fact that the data in the telephone log are maintained at the school board member's residence does not, in itself, mean that the data are not government data. This is particularly important, in light of the increase in job-sharing and telecommuting, as more public employees are working at home and other locations away from the primary workplace. This is particularly the case with an elected official who serves part-time, and who may not even have an office at the place of her/his public employment. The District also asserted that the data ...does not form a part of the Board's records in this case and is not necessary to form a complete record pursuant to the Official Records Act. Minn. Stat. section 15.17....[which] further supports the argument that the information is not 'government data'.... Although Section 15.17 does not provide an official definition of an official record, subdivision 1 states that [a]ll officers and agencies of...school districts...shall make and preserve all records necessary to a full and accurate knowledge of their official activities. It is possible that the telephone log entry, which documents some kind of communication between the school board member and a representative of one of the developers, may in fact be a part of an official record. Regardless, the fact that the data in the telephone log may not be part of an official record has no bearing upon whether the data fall under the broad definition of government data provided in Chapter 13. The purpose for which the board member uses the telephone log is an important factor in this issue. The use of the term telephone log has crept into modern usage, in what appears to be a variation on the traditional usage of log as a navigational record. The American Heritage Dictionary, College Edition, Houghton Mifflin Company, Boston 1985, provides one definition of log as [a] record of performance.... Presumably, a telephone log exists for the purpose of keeping track of the persons one has called or has received calls from, the time and date of the call, and, depending on the circumstance, the substance of the communication. In this instance, the question is whether the school board member's telephone log includes an entry which contains government data. It is reasonable to question whether the log may contain data which reflect official school board business, given that membership on a school board is typically not full-time, and it is common for board members to conduct school board business at their residences or other locations which are not District property. However, the issue is complicated by the varying descriptions provided by the District regarding the purposes for which the telephone log is maintained. In the initial explanation provided to Mr. Moilanen, the District described the log as ...a personal telephone log kept of personal telephone messages maintained by the board member. (Emphasis added.) In the information provided to the Commissioner, the District described it as ...a log which is kept by the Board member and other members of the household to make sure that telephone messages are relayed to the appropriate person in the household.... If the log is maintained by the school board member in part to log messages which concern her/his role as a school board member, then it would appear that the data in the log which reflect school board business are government data. However, if the log is a message communication system used by a family to make sure that all family members receive their telephone messages, then it would seem to lack the critical standard of use by the school board member to keep track of her/his phone conversations relating to personal or school board business. The District revealed the existence of the entry in the telephone log in response to Mr. Moilanen's request for data relating to meetings between board members and representatives of the developers. If this were a purely personal call, it is puzzling why the District revealed it in the context of his data request. It did not identify any other calls to the board member recorded in the log. The District's acknowledgement to Mr. Moilanen that the school board member logged a call from a representative of a developer, who had business before the school board, suggests there is some connection between the phone call and the board member's official role, and may raise some concern for the accountability of an elected official to the public. Accountability of elected officials is one of the overall objectives of the Minnesota Government Data Practices Act that is accomplished by the strong presumption of public access provided in Section 13.03, and the legislature's broad definition of government data. If the data are government data, then the remaining question is whether they are data classified under Section 13.33, Elected Officials; Correspondence; Private Data, which states: [c]orrespondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient. The legislature did not define correspondence, therefore guidance on the language used is appropriately sought from a dictionary. (See Minnesota Statutes Section 645.08.) As defined in The American Heritage Dictionary, College Edition, Houghton Mifflin Company, Boston 1985, correspondence is defined as [c]ommunication by the exchange of letters or [t]he letters written or received. Ms. Groen stated that an interpretation which is limited to written communication ...is very narrow and ignores the reality of everyday life in which many communications are commonly run through telecommunications systems.... It may be the case that the legislature, in light of the development and adoption of new communications technologies, may need to reconsider the language of this Section. However, the language as it stands is the language which guides the Commissioner. Data in a telephone log, which document the name of an individual and the time of the telephone call, are not correspondence within the plain meaning of Section 13.33. Opinion:Based on the correspondence in this matter, my opinion on the issues raised by Mr. Moilanen is as follows:
Signed:
Elaine S. Hansen
Dated: March 13, 1995
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Elected and appointed officials
Legislative authority and intent
Correspondence with elected officials
13.601
Location of data
Accountability of government
Presumption of openness
Location of data
Telephone records/bills
