April 11, 1994; School District 272 (Eden Prairie)
4/11/1994 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:On February 25, 1994 the Commissioner of Administration (Commissioner) received a letter from Ms. Christina L. Clark, a staff attorney for the Minnesota Education Association. In this letter, Ms. Clark described attempts by her and another attorney representing Ms. Clark's client to get access to certain data. Requests for the data were made in connection with preparation of a defense against a disciplinary action being proposed against Ms. Clark's client by the Eden Prairie School District, hereinafter District 272 . In her letter, Ms. Clark raised a number of issues concerning requests for data made to District 272 and asked that the Commissioner issue an opinion on those issues.On March 2, 1994, on behalf of the Commissioner, Donald Gemberling of the Public Information Policy Analysis Division (PIPA) wrote to Ms. Clark. The purpose of this letter was to clarify the exact issues that Ms. Clark was requesting the Commissioner to address with an opinion and to clarify the determinations made about those issues by District 272. He noted that Ms. Clark's February 25 request could not be treated as an opinion request, for time line purposes, until those issues were resolved. In a letter dated March 9, 1994, Ms. Clark submitted a new request for an opinion that identified three issues to be addressed by the Commissioner. In her letter and copies of other correspondence she enclosed, Ms. Clark described attempts by her and her client's previous attorney to get access to certain data maintained by District 272. Her client's former attorney had, on October 15, 1993, asked for copies of a variety of materials and documentation relating to complaints and charges, accusations and so forth against the client, no matter if those documents identified other individuals, including students. In a letter dated October 28, 1993, and sent to an attorney for District 272, Ms. Clark notified the District that she was now representing the client. In this letter, Ms. Clark made reference to the request made by the previous attorney and reiterated that request on behalf of her client. On February 4, 1994, Ms. Clark wrote to the attorneys for District 272 to discuss a number of issues relating to an arbitration hearing for her client. She reviewed the previous requests for access to data, stated that she now had most of the documents that she was seeking but requested that she be provided with the names of the students whose complaints had been the source of the most recent allegations against her client. She stated that her client was entitled to this data under Minnesota Statutes Section 13.43, subdivision 8. She reminded the attorneys for District 272 that this data practices request had been made 112 days prior to her letter. On February 14, 1994, Mr. Joseph Flynn, an attorney for District 272, wrote to Ms. Clark. He stated that his letter was in response to her February 4, 1994, requests. He listed the names of five students who had made complaints and stated that the names were being provided under Minnesota Statutes Section 13.43, subdivision 8. He also advised Ms. Clark that these names could not be disclosed to anyone other than her client and others representing him and that the names could not be used for any purpose other than preparation for the discharge hearing. He also stated that there were no other public documents available from District 272 that would be responsive to Ms. Clark's requests. Following this explanation of her client's dispute with District 272, Ms. Clark asked the Commissioner to address the three issues that are reproduced in the Issues section below. In response to Ms. Clark's request, PIPA, on behalf of the Commissioner wrote to Dr. Gerald McCoy, the superintendent of schools for District 272. The purposes of this letter, dated March 14, 1994, were to inform District 272 of Ms. Clark's request for an opinion, to ask Dr. McCoy or the District's attorney to provide any information or support concerning the District's position and to inform him of the date by which the Commissioner was required to issue this opinion. Copies of this letter were sent to Ms. Clark and Mr. Flynn. In subsequent correspondence and conversations with Mr. Flynn, PIPA agreed to extend by one week the date by which District 272 was to submit its response. Ms. Clark was apprised by letter of this extension. On April 4, 1994, PIPA received Mr. Flynn's response. Mr. Flynn stated that his letter represents how District 272 interprets Minnesota Statutes Section 13.43, subdivision 8. He went on to state that the District had made two determinations on data practices issues related to the requests by Ms. Clark on behalf of her client. First, the District had determined that it was appropriate to release the names of student complainants to Ms. Clark's client but that any additional necessary and relevant data are available to the client by other procedural means. Second, the District had determined that while the release of the names is appropriate, Ms. Clark's client can use the names only for preparation for the arbitration and that the names may not be redisclosed or used for any other purpose. Mr. Flynn went on to explain that when District 272 had received the initial October 15, 1993, request, the District had studied the request in light of the language in Minnesota Statutes Section 13.43, subdivision 8. The District ultimately determined that disclosure of the names was necessary so that Ms. Clark's client could prepare for the arbitration proceeding but that the names once disclosed could not be redisclosed or used for any other purpose. Mr. Flynn went on to discuss the District's reasoning concerning those two determinations. On the issue of the release of names and other data concerning the complainants, the District determined that the names and other data about the student complainants were private data. Private data about students can be released only under limited circumstances as expressly authorized by statute or federal law. Mr. Flynn reviewed the various provisions of and cases decided under state and federal law that had been examined by District 272. This examination included a review of the language in Minnesota Statutes Section 13.43, subdivision 8, that states that data about complainants or witnesses shall be available to an employee as may be necessary to prepare for a disciplinary proceeding. It was the determination of District 272 that, while the names of complainants were data that were necessary for the employee to receive, other data about the complainants were not necessary and would not be provided. Mr. Flynn pointed out that Ms. Clark's client could seek a court order or the consent of students or their parents for release of any additional data. Mr. Flynn then discussed District's 272's second determination that the names could be used only for preparation for the arbitration proceeding and could not be redisclosed and used for any other purpose. District 272 placed these conditions on the dissemination of the names to Ms. Clark and her client based on a reading of the federal law that regulates access to and dissemination of educational records. Federal law makes it clear that a person receiving education records may use those records only for the purposes for which the disclosure was made. (See 34 C.F.R. 99.33.) It was District 272's determination that, as the students' names are education records, the only authorized use for the dissemination of students' names would be to enable Ms. Clark's client to prepare for the arbitration. Any further disclosure or use of the information by Ms. Clark or her client would be, in Mr. Flynn's view, prohibited by federal law. In closing, Mr. Flynn reiterated that the District's release of names was in compliance with Minnesota Statutes Section 13.43, subdivision 8, and that limitations imposed on Ms. Clark and her client concerning the use of the names and any further disclosure of them was limited by federal law.
Issues:
In her letter requesting an opinion, Ms. Clark asked the Commissioner to address the following issues:
Discussion:
The genesis for this dispute between Ms. Clark's client and District 272 originates with the October 15, 1993, request made to an attorney for the District for, in summary, copies of all data relating to complaints, charges or accusations made against the employee no matter if that data identifies other individuals including students. The discussions between Ms. Clark and attorneys for District 272 continued for several months until Ms. Clark made a very focused request for data in her February 4, 1994 letter to Mr. Flynn. In that letter, Ms. Clark stated that her primary interest was to receive the names of students who had complained about her client and that her client was entitled to this data under Minnesota Statutes Section 13.43, subdivision 8. All subsequent discussions between Ms. Clark and District 272, including the issues raised in Ms. Clark's request for an opinion and the District's response to the request, focus on whether the names and other data about individuals who allege harassment by a public employee can be made available to that employee.
Minnesota Statutes Section 13.43, subdivision 8, was added to the Minnesota Government Practices Act, Chapter 13 of Minnesota Statutes and hereinafter MGDPA , as a 1993 change to the Act. (See Session Laws of Minnesota 1993, Chapter 351, Section 7.) Subdivision 8 reads as follows:
This particular subdivision was added to the Act because of a particular situation encountered in 1992 by Senator Gene Merriam, who has been a principal architect of the policies established in the MGDPA. An employee of the Senate complained about alleged harassment by an executive branch employee. As part of an investigation into that complaint, agents of the executive branch interviewed the Senate employee, other Senate employees and Senator Merriam. Subsequently Senator Merriam and the Senate employees learned that the data they had provided in those interviews had been made available to the employee against whom the complaint was originally made. Discussions with executive branch representatives established that it was their position that the employee was entitled to the interview information as a function of collective bargaining agreements and due process requirements. Given the circumstances of this particular instance of harassment, Senator Merriam was of the opinion that this information should not be released to the executive branch employee. Subsequently, Senator Merriam authored an amendment to Senate File 976, the 1993 Senate version of the Omnibus Data Practices Bill . (See S.F. 976, introduced on March 15, 1993, by Senators Ranum, Finn and Merriam, with a report of the Judiciary Committee recommending adoption of the bill adopted by the Senate on March 31, 1993. Senator Merriam's amendment became Section 5 of S.F. 976.) The Omnibus Data Practices Bill is the popular name assigned to a bill processed in both the Minnesota House and Senate that is used by the legislature each year as the principal vehicle to amend the MGDPA and other statutes related to legislative direction on information. Senator Merriam's amendment contained only the language that appears in the first paragraph of Subdivision 8. The 1993 House version of the Omnibus Data Practices Bill , H.F. 1245, authored by Representatives McGuire, Carruthers and Macklin did not, when it was passed by the House on May 5, 1993, contain any language pertaining to Senator Merriam's amendment. This and other differences between the two versions of the 1993 Omnibus Bill were subsequently resolved in a conference committee and the product of that conference committee was enacted into law as Chapter 351. When Senator Merriam's amendment was considered by the conference committee, concerns were raised about the effect of his amendment on the due process rights of public employees. Although his amendment dealt only with very limited situations in which a complaint against an employee involved sexual or other forms of harassment and was further limited to situations where the responsible authority determined that employee access to data about complainants might threaten the personal safety of a complainant or witness or subject them to further harassment, concern was raised by members of the conference committee that, even in those very limited situations, an employee might need access to data about a complainant to be able to effectively prepare a response to the complaint. Those discussions led the conference committee to agree to the language that became the second paragraph of Minnesota Statutes Section 13.43, subdivision 8. Understanding this legislative history is critical to understanding the operation of Minnesota Statutes Section 13.43, subdivision 8. The background to this amendment was based on a legislative understanding that because of collective bargaining agreements or due process concerns, public employees have access to data about complainants or witnesses. Senator Merriam's amendment was an attempt to limit that access only in those situations where access by an employee could threaten the safety of a complainant or witness or subject them to further harassment. The final decision by the entire legislature on that issue was that in those situations where the responsible authority determines, based on safety concerns or additional harassment possibilities, that an employee cannot have access to identifying data about complainants or witnesses, that this determination could be subsequently set aside if a disciplinary proceeding is initiated against the employee and it was determined by the responsible authority that the identifying data on complainants or witnesses is needed by the employee to prepare for the proceeding. The Section 13.43, subdivision 8 amendment was not intended to be new and independent authority for the dissemination of identifying data on complainants and witnesses to public employees in situations involving allegations of sexual or other kinds of harassment. It was intended to deal only with those situations where a responsible authority determines, based on safety or further harassment concerns, that an employee is not entitled to gain access to identifying data about complainants or witnesses. It was also intended, in those situations where a responsible authority determines to withhold access to witness and complainant identifying data, to give the employee the means to gain access to the data if a disciplinary proceeding is initiated and the employee needs the identifying data to prepare for the proceeding. In the particular situation of attempts by Ms. Clark's client to gain access to data involving the accusations against him, there does not appear to have been a determination by the responsible authority for District 272 that the employee's access to data about the student complainants would threaten the safety of those complainants or subject them to further harassment. Without that determination by the responsible authority for District 272, the discussion about access by the employee to data about complainants is not a discussion that is guided by the provisions of Minnesota Statutes Section 13.43, subdivision 8. It is a discussion based on the whether the employee is entitled to access to this data under the District's collective bargaining agreements with its employees or as may be required to protect the due process interests of the employee. In addition, District 272 must also consider whether disclosure of data concerning complainants who are students presents issues under federal law regulating the disclosure of education records and state law classifying educational data as private. (See Minnesota Statutes Section 13.32, 20 U.S.C. 1232g and 34 C.F.R. 99.) Commissioner's opinions are intended by the legislature, among other things, to provide education for agencies and the public and to assist in the resolution of controversies. Given those objectives, the Commissioner has determined, even though it appears that Minnesota Statutes Section 13.43, subdivision 8 should not have been at issue in this situation, that Ms. Clark should receive answers to the issues she raised. As to issue 1,Minnesota Statutes Section 13.43 limits access only to data that identifies a complainant or witnesses. This is consistent with the intent of the legislature in enacting this section to deal only with situations where there is a threat to the personal safety of a witness or complainant or the possibility of further harassment.As to issue 2,Ms. Clark, in her February 14, 1994, letter to Mr. Flynn, stated that she had received most of the documents asked for in the data practices request and that her primary interest was in receiving the names of the student complainants. Given those statements and the flow of other correspondence and phone calls involving the parties, it is understandable that District 272 took the position that it made no determination on this issue. If Ms. Clark does not agree with this conclusion, she should either renew her request for data, make a new request or use the provisions of Minnesota Statutes Section 13.03, subdivision 6 to gain access to the data.As to issue 3,the initial determination as to whether identifying data about complainants or witnesses, in situations involving sexual or other forms of harassment, are available to a public employee being complained about must be based in the determinations called for in Section 13.43, subdivision 8. If the responsible authority determines that access by the employee will not threaten witness or complainant safety or subject a witness or complainant to further harassment, then the responsible authority may release the data to the employee. This assumes that data on the complainants or witnesses are not classified as not public by other Minnesota Statutes or federal law. If the responsible authority determines that the employee's access to data identifying complainants or witnesses may threaten their personal safety or subject them to harassment, the responsible authority may withhold data identifying complainants or witnesses from the employee. If data are being withheld and a disciplinary proceeding is initiated against the employee, the responsible authority shall release the identifying data to the employee if the responsible authority determines the data are necessary for the employee to prepare for the proceeding. If a responsible authority determines that the data are not necessary and the employee disagrees, then the employee can seek relief from a judge, hearing officer or arbitrator as established in Minnesota Statutes Section 13.03, subdivision 6.Opinion:Based on the correspondence in this matter, my opinions on the issues raised by Ms. Clark are as follows:
Signed:
Debra Rae Anderson
Dated: April 11, 1994
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Educational data
Legislative authority and intent
Personnel data
Harassment claims, investigations
Harassment data (13.43, subd. 8)
Collective bargaining agreements
Complainant identity
Harassment data (13.43, subd. 8)
Witness identity or statement
