October 7, 2002; School District 146 (Barnesville)
10/7/2002 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 August 7, 2002, IPAD received a letter from Gloria Hartmann. In this letter, Ms. Hartmann asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data maintained by Independent School District 146, Barnesville. Ms. Hartmann's request required additional information/clarification with IPAD staff. In response to Ms. Hartmann's request, IPAD, on behalf of the Commissioner, wrote to Todd Cameron, District Superintendent. The purposes of this letter, dated August 14, 2002, were to inform him of Ms. Hartmann's request and to ask him to provide information or support for the District's position. On September 5, 2002, IPAD received a response from Patricia A. Maloney, attorney for the District. A summary of the facts of this matter follows. In an e-mail to Loretta Szweduik, the District School Board Chair, dated August 2, 2002, Ms. Hartmann stated the following: You closed the May 20, 2002 School Board meeting from 8:10 pm until 11:20 pm in order to conduct the performance evaluation for Superintendent Cameron. During the June 3rd meeting you reported that during the performance evaluation 'areas of growth were defined and Superintendent Cameron's evaluation is an ongoing process.' While the statement describes what took place at the evaluation, I do not feel it follows the requirement of Minnesota Statute 13D.05 . . . . I do not believe that your statement ('areas of growth were defined') constitutes a summary of your conclusions regarding the performance evaluation of the superintendent. Please provide the required summary of your conclusions regarding the performance evaluation of the superintendent. In an e-mail dated August 4, 2002, Ms. Szweduik responded: [t]he Minnesota School Board Association provided the summary of the performance review. Ms. Hartmann provided a copy of the minutes of the June 3, 2002, District School Board meeting, which contain the following: [a]t the May 6, 2002 meeting, Supt. Cameron's annual evaluation was reviewed. Chair Szweduik disclosed the results of the evaluation to state that areas of growth were identified and Supt. Cameron's evaluation is an ongoing process. In another e-mail to Ms. Szweduik, dated August 1, 2002, Ms Hartmann wrote: I would like to inspect the resolution and appointing order for the responsible authority for our district. Ms. Szweduik responded, in an e-mail dated August 4, 2002: [p]lease contact the District office. Ms. Hartmann stated that she had contacted the District Office, two weeks earlier, with the same request. In a letter to Ms. Hartmann dated August 7, 2002, Mr. Cameron stated: [t]o my knowledge the district has not formally named a responsible authority for handling data privacy. In her comments to the Commissioner, Ms. Maloney stated first that the Commissioner does not have the authority to interpret the Minnesota Open Meeting Law. According to Ms. Maloney, Ms. Hartmann's rights under Chapter 13 have been fulfilled, because she was provided access to the School Board's summary of the performance evaluation of the Superintendent in two ways: she had the right to attend the open meeting at which the summary was given, and upon her request, the District provided her with a copy of the meeting minutes. Ms. Maloney stated that the summary was not recorded in any format other than the School Board minutes. (She also stated that the minutes inadvertently omitted the Chair's statement that 'two' areas of growth were identified, but otherwise accurately reflect the summary. ) Ms. Maloney also commented: It is important to note that Ms. Hartmann is objecting to the content of the summary of the Superintendent's evaluation, and not access to the summary. Thus, her rights as a requester of data under [Chapter 13] have been fulfilled. Under [Chapter 13], a requester does not have the right to compel a political subdivision to create data. What Ms. Hartmann apparently wants is a more detailed summary of the Superintendent's evaluation than that provided by the Chair. Whether or not the summary actually provided by the Chair fulfills the School Board's obligations under the Open Meeting Law, involves an interpretation of that statute and not [Chapter 13]. As a result, the Commissioner does not have the authority to issue an opinion interpreting the Open Meeting Law and should decline to issue an opinion on this issue. Ms. Maloney further stated: Also, even if the Commissioner determines that he has the authority to interpret the Open Meeting Law and finds that the School Board's summary of the evaluation was not adequate, the Commissioner should find that the School District made a good faith attempt to comply with the statute. The Board Chair sought the advice on what to say in the evaluation summary from the consultant from the Minnesota School Boards Association who had facilitated the evaluation process. The Board Chair reasonably relied on advice she received from the representative from the Minnesota School Boards Association. With respect to the resolution and appointing order for the District's responsible authority, Ms. Maloney stated that the District has complied with its obligation under section 13.02 because, on November 14, 1995, the District adopted a policy entitled Protection and Privacy of Pupil Records, which, under Article III, Definitions, Section H, designated the Superintendent as the responsible authority. Ms. Maloney stated: Superintendent Cameron is now aware of his designation as the responsible authority. Issues:In her request for an opinion, Ms. Hartmann asked the Commissioner to address the following issues:
Discussion:Issue 1Pursuant to Minnesota Statutes, Chapter 13 and 13D, did Independent School District 146, Barnesville, respond appropriately to a request for the summary of its conclusions regarding the performance evaluation of the District superintendent? Pursuant to section 13D.05, subdivision 3 (a), [a] public body may close a meeting to evaluate the performance of an individual who is subject to its authority. . . . . At its next open meeting, the public body shall summarize its conclusions regarding the evaluation. The Commissioner has the following comments regarding Ms. Maloney's contention that the Commissioner does not have the authority, under section 13.072, to address this issue. Section 13.072 provides that the Commissioner may issue an opinion regarding a person's right to have access to government data. Section 13D.05, subdivision 3(a), directs government entities to provide a summary of a performance evaluation, i.e., it requires government entities to create certain data. Whether or not a government entity has discharged its duty under that provision has a direct impact on a person's right to gain access to government data. Accordingly, the Commissioner will address the issue in this opinion, as he has addressed similar issues before. In Advisory Opinion 99-018, the Commissioner opined: As a part of those amendments, the Legislature addressed the high public interest in the performance of certain public employees, and, in particular, employees about whom personnel decisions are made by governing bodies subject to the Open Meeting Law. The Legislature authorized governing bodies to close meetings to discuss personnel data about public employees, including performance evaluations, subject to certain limitations. However, the Legislature also clearly required that once a public body completed its closed-meeting evaluation of an employee subject to its authority, the body must, at its next public meeting, summarize its conclusions regarding the evaluation. (See section 471.705, subdivision 1d(d), and Laws of Minnesota 1990, Chapter 550, section 2.) . . . . Accordingly, the District was required to provide a summary of its conclusions regarding the superintendent's performance evaluation at its next meeting open to the public. The Commissioner does not agree that the statement made by the Board chair, and reflected in the meeting minutes, that the Board discussed the superintendent's strengths and weaknesses, constitutes a summary of its conclusions regarding the performance evaluation of the superintendent. Most recently, in Advisory Opinion 02-021, the Commissioner opined: Government entities seeking guidance on what to summarize can look to the language of the Open Meeting Law. Specifically, Chapter 13D directs a governing body to summarize its conclusions regarding a personnel evaluation. How a public body approaches the evaluation will determine exactly which data it should summarize. The public body should carefully review the specific points it established in reaching a conclusion about the performance evaluation. Clearly, the language of the Open Meeting Law indicates that the governing body ought to summarize each salient point of the evaluation so that the public is given the opportunity to get the best possible sense of the performance - good, bad, or indifferent - of the public employee. The Commissioner's position on this issue has not changed. The Board's statement, as reflected in the meeting minutes, areas of growth were identified and Supt. Cameron's evaluation is an ongoing process does not constitute a summary for purposes of section 13D.05, subdivision 3(a). Issue 2Pursuant to Minnesota Statutes, Chapter 13, did the District respond appropriately to a request to inspect the resolution and appointing order for the responsible authority for the District? Pursuant to Minnesota Statutes, section 13.02, subdivision 16, the responsible authority in a school district is the individual designated by the governing body of that district who is responsible for the collection, use, and dissemination of any set of data on individuals, government data, or summary data, unless otherwise provided by state law. Pursuant to Minnesota Rules, Part 1205.0200, subpart 14, (C), the the school board shall appoint an individual who is an employee of the school district. Ms. Maloney stated that the Barnesville School Board had met its obligations with respect to appointing a responsible authority under Chapter 13 because a 1995 policy entitled Protection and Privacy of Pupil Records contains the following statement: [r]esponsible authority is the superintendent of schools or his designee who is charged with the responsibility for and overall management of the school district records system. The Commissioner respectfully disagrees. Under statute and rule, the School Board was required to appoint an individual as responsible authority. The statement in a school policy that the superintendent is the responsible authority does not constitute a School Board appointment of an individual. Mr. Cameron himself was unaware that he was the District's responsible authority. The District may wish to review the advisory form provided at Minnesota Rules, part 1205.2000, subpart 3, for a model resolution to assist it in appointing a responsible authority. Opinion:Based on the facts and information provided, my opinion on the issues raised by Ms. Hartmann is as follows:
Signed: David F. Fisher
Dated: October 7, 2002 |
Personnel data
Responsible authority
Closed meetings
Open Meeting Law
Employee evaluation summary
Employee evaluation summary
Name, title, and address
