April 16, 2001; School District 2169 (Murray County Central)
4/16/2001 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 person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access. On February 13, 2001, IPA received a letter from X. In this letter, X asked the Commissioner to issue an advisory opinion regarding his/her right to gain access to certain data maintained by Independent School District 2169, Murray County Central Schools. In response to X's request, IPA, on behalf of the Commissioner, wrote to Cornelius H. Smit, Superintendent of the District. The purposes of this letter, dated February 15, 2001, were to inform him of X's request and to ask him to provide information or support for the District's position. On February 23, 2001, IPA received a response from Jay T. Squires, attorney for the District. A summary of the facts of this matter follows. X is a teacher employed by the District. In an April 11, 2000, meeting with the school principal, X was informed there were some concerns addressed in a letter to the principal from another District teacher. In a letter to the principal dated April 12, 2000, X asked for a copy of the letter of concerns. The principal denied the request on April 14, 2000, and noted I am completing my investigation of complaint and intend to issue a response in writing as soon as possible. You may then resubmit your request. X repeated his/her data request in another letter to the principal dated April 17, 2000, which was denied the same day. According to X, [o]n April 26, 2000, a disciplinary letter of concerns . . . was delivered to me. Included in this document was one of the items addressed in [the other teacher's] letter. In a letter to the principal dated April 27, 2000, X repeated his/her request for access to that letter. The principal did not respond. In a letter to Superintendent Smit dated May 2, 2000, X requested the opportunity to view all district data in relation to myself. . . . Subsequently, X was allowed access to his/her personnel file, which contained the disciplinary letter from the principal. In a letter to the principal dated May 26, 2000, X asked again for access to the teacher's letter, and asked for the statutory basis if access was denied. The principal did not respond. In a June 27, 2000, letter to Superintendent Smit, X stated that s/he was making her/his fifth request for access to the teacher's letter of concerns, and stated: I am requesting, from the Responsible Authority of District #2169, a response to my request either by receiving a copy of the letter of concerns or the statute which denies my access at this time. In a letter dated July 18, 2000, Superintendent Smit responded: [w]ith respect to your July [sic] 27, 2000, data practices request for a copy of an April 2000 letter from [the other teacher to the principal], the District does not have a copy of the letter in its possession and therefor cannot respond to your request for a copy of the letter. In his response to the Commissioner, Mr. Squires stated that in March 2000 the principal commenced an investigation as the initial step in the administrative proceeding process established by the teacher tenure law, Minn. Stat. section 122A.40. As of April 12, 2000, those proceedings were still pending, and the investigation was still in process. Mr. Squires further stated: Minn. Stat. section 13.39 indicates that data collected by school districts as part of an active investigation undertaken and for the purpose of the potential commencement of judicial, administrative, or arbitration proceedings is confidential data in the case of data on individuals. Consequently, since the . . . principal was on April 12, 2000 conducting an active investigation under the auspices of the administrative process established by the teacher tenure law, the employee had no right on April 12, 2000 to access to the requested data. Moreover, the employee never made a request for access to the responsible authority as is required by Minn. Stat. section section 13.03 and 13.04. Issue:In his/her request for an opinion, X asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.04, subdivision 3, individuals are entitled to gain access to public or private data of which they are the subject. When a data subject makes a request for data about him/herself, government entities are required to make the data available within ten working days. Mr. Squires noted that X did not make his/her request to the District's responsible authority, but rather directly to the principal. However, Mr. Squires acknowledged that the high school principal nevertheless responded to the employee's request for a copy of the letter. Mr. Squires did not identify the District's responsible authority. It is correct that X addressed his/her initial requests for data (April 12, 17 and 27, and May 26) to the principal. However, X addressed the May 2 and June 27 requests to the Superintendent, and in the latter request, stated that s/he was asking the District responsible authority to respond. Superintendent Smit did not respond to X's June 27 request until July 18, and in his response, he did not state that he is not the District's responsible authority. Mr. Squires comments notwithstanding, it appears that the District treated X's April 12 and 17 requests to be legitimate data practices requests. The high school principal examined those requests and responded to them. Further, even if the ten-day response time began when the Superintendent, as the apparent responsible authority for the District, received X's May 2, 2000, request for access to all data about her/himself, the District continued to deny X access to the teacher's letter of concern, as of its July 18, 2000, response. This is past the ten-day statutory deadline. In addition, Mr. Squires asserted that at the time of X's initial request, the data were classified as confidential pursuant to section 13.39. As the Commissioner has previously opined, in order for a government entity to deny 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 was not provided any information to demonstrate that the chief attorney acting for the District had made such a determination at the time of X's requests to the principal or the superintendent. In his denials to X, the principal made no mention that he was acting on advice from the District's chief attorney. The first mention of section 13.39 as the basis for denying X access to the other teacher's letter was made by Mr. Squires in his comments to the Commissioner. Absent a determination from the District's chief attorney, the District may not deny X access to the teacher's letter on the basis of section 13.39. (Additional information about section 13.39 can be found in Advisory Opinions 01-022, 98-017, 96-044, 95-050, 95-040 and 94-006.) Mr. Squires stated that the principal was conducting an investigation into X's conduct according to the process provided at Minnesota Statutes, section 122A.40, the teacher tenure law. However, there is nothing in that section that classifies data on teachers under investigation as confidential. In fact, pursuant to subdivision 19, [a]ll evaluations and files generated within a school district relating to each individual teacher must be available to each individual teacher upon written request. Finally, in his July 18, 2000, response to X, Superintendent Smit stated: . . . the District does not have a copy of the letter in its possession and therefor cannot respond to your request for a copy of the letter. X stated to the Commissioner that one of the items addressed in the letter from the other teacher was included in the April 26, 2000, disciplinary letter to X from the District. If the District relied upon data in the letter from the other teacher to make a decision about disciplining X, the data are official records within the meaning of Minnesota Statutes, section 15.17 and Minnesota Statutes, section 138.163, et. seq. The District should have both maintained the letter from the other teacher and made it available to X. The Commissioner has an additional comment. Government entities might avoid situations like this one if they provided their employees with the policies and procedures they are required to develop, pursuant to section 13.05, subdivision 8, concerning the rights of data subjects and the specific procedures in effect for access to data by the data subject. Opinion:Based on the facts and information provided, my opinion on the issue raised by X is as follows:
Signed: David F. Fisher
Dated: April 16, 2001 |
Civil investigative data
Personnel data
Chief attorney has substantial discretion to determine
Civil investigative data (13.39)
Teacher Tenure law (122A.40)
Data subject rights of access procedures (13.05, subd. 8)/(13.025, subd. 3)
