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Advisory Opinion 97-018

May 5, 1997; School District 278 (Orono)

5/5/1997 10:15:43 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.

Note: The Minnesota Supreme Court in Burks v. Metropolitan Council, No. A14-1651 (Minn. Aug. 24, 2016), held that data subjects have the right to access data about themselves, even if the data in question identify private data on other individuals.

Facts and Procedural History:

For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

On January 24, 1997, PIPA received a letter from Paul Ratwik and Michelle Soldo, attorneys representing School District #278, Orono. In their letter, Mr. Ratwik and Ms. Soldo requested that the Commissioner issue an opinion regarding the classification of certain government data maintained by District 278. As a result of subsequent telephone conversations, two issues were agreed upon.

A summary of the facts surrounding this matter is as follows. Mr. Ratwik and Ms. Soldo wrote that District 278 received a complaint from a parent alleging that a District volunteer had engaged in harassing behavior toward the complainant and the complainant's child. District 278 conducted an investigation and determined that it would no longer utilize the volunteer's services. The volunteer subsequently requested access to various data regarding the complaint.

Following the volunteer's request, District 278 received two anonymous letters from individuals who disagreed with the District's action regarding the volunteer. Mr. Ratwik and Ms. Soldo wrote:

One such letter purports to be from angry parents and indicates that if the Complainant does not retract [his/her] complaint against the volunteer [s/he] will suffer legal and other consequences. Moreover, the letter threatens that the complainant's child will not have a comfortable experience in school in the future as a result of the complaint against the volunteer.

Mr. Ratwik and Ms. Soldo noted that Minnesota Statutes Section 13.43 provides for the public classification of certain data relating to the discipline of a public employee/volunteer. However, they further noted that subdivision 8 of Section 13.43 precludes the release of certain data if the complainant may be subject to harm or harassment because of the release of the data. Mr. Ratwik and Ms. Soldo argued:

...the District has reason to believe that disclosure of the complaint and its interview notes with the complainant and other witnesses may subject the complainant, the complainant's child and witnesses to harassment or other harm. The District does not assert that the letter was written by the volunteer. However, based on the fact that the letter was unsigned, the District cannot rule out the possibility that it was written by the volunteer or by another individual at the volunteer's request. Moreover, even if the volunteer is completely unaware of the existence of the letter, the District cannot prevent the volunteer from disclosing this information to individuals who may carry out the threats detailed in the letter.

Mr. Ratwik and Ms. Soldo also noted that because the District's decision regarding discipline is final, and because the volunteer's association with the District was non-contractual, s/he has no appeal rights.

Mr. Ratwik and Ms. Soldo also stated, It is the District's position that where it maintains the data requested by the volunteer...the Act requires that it redact the names of students and any information that readily identifies students from these documents.

Issues:

In their request for an opinion, Mr. Ratwik and Ms. Soldo asked the Commissioner to address the following issues:

Pursuant to Minnesota Statutes Chapter 13, must School District 278, Orono, disclose to the subject of the complaint the contents of a harassment complaint and its investigation notes detailing the allegations where the District has reason to believe that such a release may result in harassment or harm to the complainant and/or the complainant's child?
Pursuant to Chapter 13, must District 278 disclose to the subject of the complaint documents believed by the District to be harassment data where the District has reason to believe that such a release may result in harassment or harm to the complainant and/or the complainant's child?

Discussion:

Government data maintained by a public employer relating to current or former employees and/or volunteers are classified pursuant to Minnesota Statutes Section 13.43, personnel data. (See Section 13.43, subdivision 1.) Section 13.43 provides that certain data about employees and/or volunteers are public, and that all other personnel data are private. Generally speaking, all data of which an employee and/or volunteer is the subject, are accessible to that individual. However, one exception to this general rule is found at Section 13.43, subdivision 8, which states:

When allegations of sexual or other types of harassment are made against an employee, the employee does not have access to data that would identify the complainant or other witnesses if the responsible authority determines that the employee's access to that data would:

(1) threaten the personal safety of the complainant or a witness; or

(2) subject the complainant or witness to harassment. If a disciplinary proceeding is initiated against the employee, data on the complainant or witness shall be available to the employee as may be necessary for the employee to prepare for the proceeding.

In specific regard to this opinion, the District volunteer was relieved of her/his responsibilities because s/he allegedly engaged in some harassing behavior. Subsequent to the volunteer making a request for access to related data, the District received two anonymous letters from individuals who disagreed with District 278's decision to dismiss the volunteer.

Upon review of one of the letters, the Commissioner concurs with the determination reached by Mr. Ratwik and Ms. Soldo. A reasonable interpretation of the letter is that it is meant to serve as a threat to the complainant and her/his child. In addition to the comments cited above in the Facts and Procedural History section, the letter states:

We want you to know that this issue will not go away. If you do not take steps immediately to ask the administration to allow [the volunteer] to be part of [a particular school activity] we will take actions, legal or not, to influence you to do so....[Some people] have already voiced their concerns about you and your involvement with [a particular school activity]. We will make sure that everyone knows the exact kind of people that you are....You, and your family, will find out what the word ostracize really means.

Subdivision 8 of Section 13.43 precludes a government entity from releasing certain data to the complained-about employee and/or volunteer, if the responsible authority determines that the individual's access to the data would either threaten the personal safety of the complainant/witness, or would subject the complainant/witness to harassment. In the case of this opinion, based on the contents of the letter, District 278 seems to have made a reasonable determination that releasing information about the complainant to the volunteer might result in harm or harassment to the complainant, her/his child, or others who support her/his position. Therefore, it would appear that pursuant to Section 13.43, subdivision 8, any data relating to the matter which identify the complainant or other witnesses are not accessible to the volunteer.

However, as the Commissioner discussed in Advisory Opinion 96-002, when Section 13.43, subdivision 8, is read in conjunction with Demers v. City of Minneapolis, 468 N.W.2d 71 (Minn. 1991), a complainant's identity cannot be protected if that person is a member of the public who does not otherwise enjoy any protections under Chapter 13.

In the case at hand, the complainant is a parent; data collected and maintained about her/him by District 278 are classified pursuant to Section 13.32 as private. Thus, data relating to the harassment matter that identify the complainant (and her/his child) are not accessible to the volunteer. The data are not accessible to the volunteer because those data are private educational data pursuant to Section 13.32. (See Section 13.32, subdivisions 2 and 3.)

The District also expressed concern that some of the data in question may be about other District 278 employees, students, or parents. A similar issue was addressed in Advisory Opinion 97-010. The Commissioner wrote:

The answer to [the school district's] question depends on whom the data in the arbitrator's report are about. (For additional information regarding similar issues, please see Advisory Opinion 93-010.) In other words, is the subject of the data... a student [and/or parent], or another District 2143 employee?...

Generally speaking, Section 13.32, educational data, provides that data collected, created, and maintained by public educational institutions about students [and/or parents] are private (the main exception being those data which become public through the directory information process, see Section 13.32, subdivision 5). Therefore, if some of the data in the arbitrator's award are about individual students [and/or parents] and can be identified as such, and the data are classified as private pursuant to Section 13.32, then that information needs to be removed from the report. However, if the use of identifiers by the arbitrator means that comments by any one student cannot be attributed to that student, then the data are no longer data about that student [and/or parent] and are public pursuant to the presumption in Section 13.03, subdivision 1.

The same analysis applies to any data in the arbitrator's award that are about a District 2143 employee other than the disciplined employee. If so, and the data are classified as private pursuant to Section 13.43, then the data need to be removed. If, however, removing the names and job titles of those employees creates a result such that any statements or comments cannot be attributed to a particular employee, then the data are no longer data about the other District 2143 employee and are public pursuant to the presumption in Section 13.03, subdivision 1.

The analysis in Advisory Opinion 97-010 is similar to the situation at hand. If any of the data requested by the volunteer are about other District 278 students (and/or parents), or other District 278 employees, and are classified as private pursuant to Minnesota Statutes Sections 13.32 and 13.43, respectively, those data are private and not accessible to the volunteer.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Ratwik and Ms. Soldo is as follows:

Pursuant to Minnesota Statutes Section 13.43, subdivision 8, the following data maintained by District 278 are not accessible to the volunteer: data relating to the harassment matter involving the volunteer that identify the complainant or her/his child. Further, if any of the related data are about other District 278 students (and/or parents) or other District 278 employees, and are classified as private pursuant to Minnesota Statutes Sections 13.32 and 13.43, respectively, those data are private.

Pursuant to Minnesota Statutes Section 13.43, subdivision 8, the following data maintained by District 278 are not accessible to the volunteer: data relating to the harassment matter involving the volunteer that identify the complainant or her/his child. Further, if any of the related data are about other District 278 students (and/or parents) or other District 278 employees, and are classified as private pursuant to Minnesota Statutes Sections 13.32 and 13.43, respectively, those data are private.

Signed:

Elaine S. Hansen
Commissioner

Dated: May 5, 1997

Educational data

Multiple data subjects

Personnel data

Multiple data subjects

Complainant identity

Data subject access to personnel data

Harassment data (13.43, subd. 8)

Witness identity or statement