Note: In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.

Facts and Procedural History:

On September 26, 2005, IPAD received a letter dated same, from X. In the letter, X asked the Commissioner to issue an advisory opinion regarding X's right to gain access to certain data from the City of Saint Paul. IPAD, on behalf of the Commissioner, requested additional information and clarification, which IPAD received on October 13, 2005.

IPAD, on behalf of the Commissioner, wrote to Shari Moore, Acting City Clerk, in response to X's request. The purposes of this letter, dated October 17, 2005, were to inform her of X's request and to ask her to provide information or support for the City's position. On October 28, 2005, IPAD received a response, dated same, from Gail Langfield, Assistant City Attorney.

A summary of the facts as provided by X is as follows. In his/her opinion request, X wrote:

The [Fire Captain test] was a three part test with each portion of the test accounting for a third of your final score. Part one was a written test, part two was a fire simulator, part three was the B-PAD test. The B-PAD test is designed to assess interpersonal competencies.

After all three parts of the test were completed test candidates were allowed to review and contest both the written portion and the fire simulator portion of the test. Candidates were not allowed to review the B-PAD portion of the test. Scores did change after the review of the other parts of the test.

(B-PAD is a private company. X did receive from the City a numerical score for the B-PAD portion of the Fire Captain test.)

In a letter dated August 11, 2005, X wrote to the City and to B-PAD and asked for the complete record of my testing results for the B-PAD portion of the test.

The City responded by sending X a copy of the letter it previously sent to X on January 15, 2004. The letter provides only the numerical score for the B-PAD portion of the test.

B-PAD apparently did not respond to X.

Issue:

Based on X's opinion request, the Commissioner agreed to address the following issue:

Discussion:

Pursuant to Minnesota Statutes, section 13.04, an individual is entitled to gain access to data of which s/he is the subject. Generally, when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.

In his opinion request, X questioned why the City does not have data documenting the numerical results of the test score. X cited language in Minnesota Statutes, section 15.17, and wrote, I believe more information should have been generated. X further noted that it is difficult to challenge the accuracy and/or completeness of the numerical test score if there are no data that document how the City or B-PAD arrived at the numerical score.

In her comments to the Commissioner, Ms. Langfield wrote:

on January 15, 2004 the [City's] Office of Human Resources provided [X] with [X's] results Information provided about the B-PAD portion of the test was in the form of a numerical score.

B-PAD is a video test during which the candidates what [sic] a series of professionally produced simulations. Candidates taking the B-PAD are placed before a video monitor. At a particular point in each scene the word respond appears on the monitor and the candidate is then given 45 seconds to respond verbally. A video camera which is placed next to the monitor records the candidate's responses for later scoring by trained raters. These raters assign a score in the form of a number.

For the Fire Captain's exam, the City contracted with B-PAD to score the test and provide the City with results. The videotaped responses of the candidates were sent to B-PAD, and the City received a numerical score for each candidate. This is the information which was then provided [X].

[X] alleges there must be more data available. However, the City has no additional information. The City does no [sic] have examination materials or scoring keys for this test. Scoring for this examination was done by the B-PAD company. Obviously, when rating the responses, B-PAD had criteria/scoring keys which it applied.

The Commissioner notes that Ms. Langfield provided copies of two letters written by B-PAD staff. Prior to requesting this opinion, X was part of a group that filed a grievance and challenged group members' test results. Both letters apparently are related to the grievance. The February 2004, letter is addressed to the City's Human Resources department. In part, it states, It is the policy of The B-PAD Group, Inc. not to share test information with candidates. All test materials are copyrighted. Your city has also signed a test security agreement precluding you from divulging any test material.

The November 2004, letter is addressed to the Saint Paul Civil Service Commission. In part, it states:

The B-PAD Group, Inc. has data only in the form of numerical scores from the exam raters. We have never received individual performance evaluations or notes related to individuals' performance ratings used by the scorers of the B-PAD test.

Any data that we have has already been sent to the City of Saint Paul.

X provided to the Commissioner a copy of the conclusion the Civil Service Commission reached in June 2005:

The lack of individual performance evaluations and notes related to the individual's performance ratings used by the scorers of the B-PAD test defeats the ability of employees to challenge their test results under Civil Service Rule 6E and the scoring methods should be reviewed.

The Commissioner has the following comments. The first relates to the contractual relationship between the City and B-PAD. In her comments, Ms. Langfield wrote that the City contracted with B-PAD to score the test and provide the City with the results. She also stated that the videotaped responses of the candidates were sent to B-PAD.

Chapter 13 provides that when a private person, such as B-PAD, contracts with a government entity, data related to the contract that are maintained by the private person may become subject to Chapter 13. Section 13.05, subdivision 11, states, in part:

If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of [Chapter 13] and that the private person must comply with those requirements as if it were a government entity.

In WDSI, Inc. v. The County of Steele, 672 N.W.2d 617 (Minn.App. 2003), the Court discussed a situation in which a contract between a private person and Steele County did not contain the language required by section 13.05, subdivision 11. The Court held that the District Court's decision to not infer the language was in error:

To accept WDSI's argument and the district court's reasoning would be to simply ignore the mandate of the statute. Although the mandate was not expressly reflected in the contract, it applies nevertheless, and neither contracting parties nor courts can simply ignore it.

(See WDSI, p.622. Also see Advisory Opinion 01-075.)

Here, the City did not provide the Commissioner with any contractual documents. X provided the Commissioner with a document entitled, Limited Use Agreement, signed by the City and B-PAD. This document does not contain the term required by section 13.05, subdivision 11. In addition, some of the provisions appear to be in violation of Chapter 13.

Pursuant to section 13.05, subdivision 11, any data relating to the scoring of the results that B-PAD collected and created as part of its contractual agreement with the City are subject to the provisions of Chapter 13.

The Commissioner's second comment regards Minnesota Statutes, section 15.17, the Official Records Act. In her comments to the Commissioner, Ms. Langfield asserts that the only data the City maintains in relation to the B-PAD portion of the captain's test is the numerical score, which the City has provided to X. However, pursuant to section 15.17, it appears the City should be maintaining data beyond the numerical score.

Section 15.17 requires entities both to create and to keep official records, which must be kept for time periods as prescribed in the entity's record retention schedule (see Minnesota Statutes, section 138.17). Subdivision 1 of section 15.17 states, All officers of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states, Access to records containing government data is governed by sections 13.03 and 138.17. Thus, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be accessible pursuant to Chapter 13.

Here, it appears that data documenting how the City reached the numerical score of the B-PAD portion of X's exam constitute an official record, which the City should maintain. The fact that the City contracted with B-PAD to score the test does not negate the City's obligations under Chapter 13 and section 15.17. Further, because B-PAD is under contract to the City and it seems the scoring data are subject to Chapter 13 requirements, it is not appropriate for B-PAD to refuse access to those data.

Finally, because the Commissioner does not know for certain what data were collected and created related to the scoring of the test, she cannot determine the classification of those data. Generally, pursuant to sections 13.04 and 13.43, X would be entitled to inspect or obtain copies of data of which s/he is the subject. However, if some of the data are examination data (see section 13.34), it is possible that the City could restrict access to those data.

Opinion:

Based on the facts and information provided, my opinion on the issue that X raised is as follows:

Signed:

Dana B. Badgerow
Commissioner

Dated: November 30, 2005