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 government entity that requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of PIPA and are available for public access.

On October 20, 1995, PIPA received a letter requesting this opinion from Ivars J. Krafts, an attorney representing the Long Prairie-Grey Eagle School District (I.S.D. # 792.) A summary of the detailed facts of the matter follows.

The District hired Mr. Krafts to investigate a complaint, made by a parent against a teacher in the District. The complaint alleged misconduct toward the parent and the parent's child, a student in the teacher's class.

Mr. Krafts directed one of his employees to interview witnesses, and report his findings to Mr. Krafts. Mr. Krafts then made a written report to the District, in which he concluded that the teacher had behaved inappropriately toward both the parent and child. Upon Mr. Krafts' recommendation, a "Notice of Deficiency" was placed in the teacher's file. Mr. Krafts referred to the Notice of Deficiency as "the resulting discipline."

According to Mr. Krafts, upon request, the parent was "provided a summary" of the actions taken by the District in this matter.

The parent then requested a copy of my investigator's report. I advised the Superintendent that, in my opinion, this information was not subject to release for the following reasons:

1. The investigator is employed by me, not the District.
2. The investigator's report is in effect my work product, and as a general principle, an attorney's work product is not subject to disclosure.
3. The report is my property, not the District's.
4. By providing a summary of the disciplinary action, the District met the requirements of Minnesota Statutes section 13.43, Subd. 2 (a).

Issue:

Discussion:

Mr. Krafts offered four reasons to support his opinion that the investigative report is not public data. The first reason is that the investigator is his, not the District's, employee. However, in this instance, Mr. Krafts is acting as an agent of the District. By extension, his employee is also, in this instance, acting as an agent of the District while conducting the interviews. This argument, per se, is not sufficient to deny public access to the report.

Mr. Krafts' second rationale is that the report constitutes his work product, and "as a general principle . . . is not subject to disclosure." He offered no other information in support of this assertion. In order to determine whether the work product of an attorney employed by a government entity is exempt from disclosure under Chapter 13, it is necessary to examine Section 13.30, which governs public attorneys:

Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for the state, a state agency or a political subdivision shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility; provided that this section shall not be construed to affect the applicability of any statute, other than this chapter and section 15.17, which specifically requires or prohibits disclosure of specific information by the attorney, nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17. [Emphasis added.]

As discussed in Commissioner's Advisory Opinion 95-040, the Commissioner believes the intent behind and the purpose of Section 13.30 is to clarify that the use, collection, storage, and dissemination of data by attorneys acting in their professional capacities are controlled by statutes, rules, and professional standards which relate to discovery, production of documents, introduction of evidence, and professional responsibility. In other words, if certain data are protected, as an attorney's work product, pursuant to a particular statute, rule, or professional standard, no provision in Chapter 13 or Section 15.17 supersedes and/or alters the classification or treatment of those data.

It should be noted, however, that the last phrase of Section 13.30 indicates the Legislature did not intend for this Section to relieve responsible authorities, other than attorneys, from their duties and responsibilities under Chapter 13 or Section 15.17. Otherwise, a government entity could effectively shield any data it did not wish to disclose, by turning the matter over to its attorney. If Mr. Krafts' logic were accepted, anything an attorney did related to the use, collection, storage, and dissemination of data could be exempted from regulation under Chapter 13. By including the last phrase of Section 13.30, the legislature clearly intended to prevent just such an occurrence.

Third, Mr. Krafts asserts that the report is his property, not the District's. It is difficult to address this issue without knowing the exact content of the contract between Mr. Krafts and the District. If the terms of the contract state that all the data produced by Mr. Krafts for the District belong to him, then that would appear to be another way in which responsible authorities may be relieved of their responsibilities under Chapter 13.

The same concerns apply to this argument that apply to the claim that the report is Mr. Krafts' work product. Although he did not cite Section 13.30 as the basis for his rationale, if public attorneys may employ Section 13.30 to claim that all the data they handle in conjunction with the performance of any duty for a government entity are their property, then that could have the effect of negating significant policy requirements of Chapter 13. The Commissioner does not believe that the Legislature intended that result in its enactment of Section 13.30.

Finally, Mr. Krafts maintains that because the District provided a summary of its actions in this matter, it had met its obligation, pursuant to Minnesota Statutes Section 13.43, subdivision 2, to provide access to the data requested. However, the language of Section 13.43, subdivision 2, in relevant part, states clearly that the following data are public: ". . . the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action. . . ." (Emphasis added.)

The District is obligated to provide appropriate access to the data requested. Clearly, the data in the investigator's report constitute data which document the basis of the District's disciplinary action. It may be the case that the matter is not "final disciplinary action" for purposes of Section 13.43, subdivision 2, and if not, those data are not yet public. However, the District did not offer that as its basis for denial of access to the data.

In addition, it may well be the case that the report also contains private educational data, and/or private personnel data on other District employees. In that case, those data must be redacted from the data provided to the public. Of course, the parent is entitled to gain access to educational data about her or his own child, but is not entitled to gain access to private educational data about other students, or private personnel data. (For a more in-depth discussion of this point, see Commissioner's Advisory Opinion 93-010, issued December 9, 1993.)

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Krafts is as follows:

The District is obligated to provide access to the public data portion in its attorney's investigator's report. If the District has made a "final disposition" of disciplinary action, the data in the report that describe the reasons for the disciplinary action or document the basis for the action are public data. If the report contains private personnel or educational data about other employees of District 792, or its students, those data must be redacted from the data made available to the public.

Signed:

Elaine S. Hansen
Commissioner

Dated: November 9, 1995