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

Facts and Procedural History:

On July 7, 2003, IPAD received a letter dated July 2, 2003, from Nancy Cameron, Assistant General Counsel for Independent School District 625, Saint Paul. In her letter, Ms. Cameron asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains relating to contract bus drivers. IPAD staff requested additional information, which Ms. Cameron provided with a letter dated July 22, 2003. IPAD staff required further information, which the District provided on July 28, 2003. Also, on July 22, 2003, IPAD received a letter dated July 21, 2003, from Brendan Cummins, an attorney representing Service Employees International Union, Local 284 (Local 284). Mr. Cummins is the individual who made a data request relating to the data in question. In his letter, Mr. Cummins provided comments to the Commissioner.

In letters dated July 30, 2003, IPAD invited the four bus companies with which the District contracts to submit comments. The Commissioner also extended the same invitation to Mr. Cummins, who submitted his first set of comments before the Commissioner technically had accepted the District's opinion request. On August 7, 2003, IPAD received comments, dated same, from Mr. Cummins. On August 11, 2003, IPAD received comments, dated same, from Thomas Traschel, an attorney representing First Student, Inc. and Monarch Bus Service, Inc. The Commissioner did not receive comments from Safe-Way Bus Company or Comfort Bus Company.

A summary of the facts is as follows. Pursuant to the bid specifications, the District performs driver license checks on all drivers operating under contract at least three times during the school year. Each contractor provides the District, three times during the school year, with a complete listing of all drivers operating under the contract. In her opinion request, Ms. Cameron wrote:

...Local 284, through its attorney, Brendan D. Cummins, has requested information about drivers for bus companies under contract with the School District....

Initially I denied the request for access to data for several reasons....My primary concern was that the data sought-name, address, and telephone numbers-could not be disclosed...under the Driver's Privacy Protection Act of 1994 ( DPPA )....

Mr. Cummin's second letter clarifies that he is requesting information on bus drivers provided by the bus companies to the School District, not information obtained by the School District from a motor vehicle record....Mr. Cummins indicated he wanted the drivers' names, even if the other information could not be provided.

The essential question, therefore, is whether the bus drivers' names, which are provided by the bus companies, are public data or whether they are private data or information.

Issue:

In her request for an opinion, Ms. Cameron asked the Commissioner to address the following issue:

Discussion:

Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified.

Mr. Cummins, in his comments to the Commissioner, argued that the names of the bus drivers are public. He stated, The District has failed to cite to any statutory provision that would defeat the strong presumption that data pertaining to bus drivers in the possession of the District is public...

Conversely, Mr. Trachsel, in his comments, argued that the names of the school bus drivers are not subject to disclosure under Chapter 13. One reason, he asserts, is that the federal Drivers' Privacy Protection Act (DPPA) precludes dissemination. Mr. Trachsel stated:

The School District has refused to disclose the addresses and telephone numbers of the bus drivers on the basis that the information could not be disclosed under the DPPA, and the Union concedes that it is not entitled to this data, insofar as the School District obtains this information from the Driver and Vehicle Services Division ( DVS ) of the Minnesota Department of Public Safety, and not from the bus companies. The Union attempts to distinguish the names of the bus drivers from their addresses and telephone numbers on the basis that the School District collects the names from the bus companies, not just from the DVS. [Emphasis provided.]

By claiming that it is entitled to the names of the drivers because the School District collects this information directly from the bus companies, the Union is attempting to perform an end-around the DPPA....Obviously the School District needs to collect the names of the bus drivers in order for it to be able to perform the tri-annual license record checks. [Emphasis provided.]

Mr. Trachsel also asserted that the National Labor Relations Act (NLRA) prevents the District from disclosing the names of the bus drivers. He wrote, The NLRA is the principal piece of legislation regulating the relationship between private sector employers, labor unions, and affected employees. He further noted that under the National Labor Relations Board's (NLRB) rules, a union is not entitled to obtain a list of employees' names until complying with a series of rules governing the circumstances (and timing) under which a labor union engaged in organizing activity is entitled to obtain the names of the employees that it seeks to represent. Mr. Trachsel wrote, Under the scheme established by the NLRB, the Union is not entitled to the list of names that it has requested.

The Commissioner respectfully disagrees with both of Mr. Trachsel's arguments. Mr. Trachsel is correct that, pursuant to the DPPA, the Minnesota Department of Public Safety (DPS) prohibits release, except under certain circumstances, of most of the motor vehicle and driver license information it collects and maintains. Further, the Commissioner agrees that any data the District obtains from DPS are not public pursuant to section 13.03, subdivision 4(c). However, the District does not obtain the names of the bus drivers from DPS; the names are acquired from the bus companies. Therefore, the District cannot use the DPPA as a basis upon which to prohibit release of the names.

Regarding the NLRA, although it may regulate the relationship between employers, labor unions, and affected employees, it does not, for the purposes of Chapter 13, classify data in the possession of the District as not public. Therefore, it is not a basis upon which the District can withhold the names of the bus drivers.

As stated above, section 13.03, subdivision 1, provides that all government data are public unless otherwise classified. Because there is no statutory provision or federal law classifying the bus driver names as anything other than public, they are public.

The Commissioner adds the following comments. Pursuant to Minnesota Statutes, section 13.05, subdivision 11, when a government entity enters into a contract with a private person to perform any of the entity's functions, it must include terms in the contract making 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 this chapter and that the private person must comply with those requirements as if it were a government entity. This provision went into effect on August 1, 1999.

In the case at hand, the District's contracts with the bus companies do not contain the type of clause required by section 13.05, subdivision 11. Rather, the relevant provisions in the District's bid specification state that the District will treat personal information on contractor school bus drivers, including names as confidential information to the extent possible under [Chapter 13].

The Commissioner has opined, in previous opinions, that if the privatization clause is not contained in a contract, its presence nonetheless should be inferred to give effect to the Legislature's intent. The Commissioner reached that conclusion based on advice from the Office of the Minnesota Attorney General (OAG). In Advisory Opinion 01-075 the Commissioner wrote:

...The language in subdivision 11 is mandatory so its omission would pose a problem for both Mounds View and Kennedy Graven for which there are two possible remedies. The first is to infer the term's presence in the contract. The second is to find the contract void or voidable. The Commissioner finds it preferable to keep the contract in effect and infer the presence of the above provision rather than voiding the contract in its entirety.

The Commissioner notes he is aware of a recent District Court Opinion in which the Court disagreed with the analysis in the advisory opinion. (See WDSI, Inc. v. The County of Steele, File No. C4-02-1285 (Third Judicial District Steele County State of Minnesota).) The court in that case was not aware the Commissioner reached his conclusion in 01-075 based on the OAG's advice.

The point of raising the issue of the privatization clause is that if the clause either existed or was inferred to exist in the contracts between the District and the bus companies, certain bus driver names in the possession of the bus companies would be public pursuant to section 13.43. (Section 13.43 classifies as public the names of employees of government entities.) To clarify further, only the names of drivers who provide service to the District under the circumstances contemplated in section 13.05, subdivision 11, would be public. Section 13.05, subdivision 11, applies only to contractual situations involving government entities. It would not apply, for instance, in situations where a bus company is providing service to a non-public school. The Commissioner reminds private persons entering into certain contracts with government entities that data related to those contracts likely are subject to the provisions of Chapter 13.

Opinion:

Based on the facts and information provided, my opinion on the issues that Ms. Cameron raised is as follows:

Signed:

Brian J. Lamb
Commissioner

Dated: September 2, 2003