Issues:

In their request for an opinion, Mr. Roszak and Mr. Waldspurger asked the Commissioner to address the following issues:

Discussion:

Issue 1

Is a school board member an employee for purposes of Minnesota Statutes, section 13.43?

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified by state or federal law.

Personnel data are classified pursuant to section 13.43. Personnel data are data on individuals collected because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a state agency, statewide system or political subdivision or is a member of or an applicant for an advisory board or commission. Subdivision 2 of section 13.43 classifies specific types of personnel data as public and subdivision 4 classifies most remaining personnel data as private.

Chapter 13 does not contain a specific classification for data about elected officials. However, in several previously-issued advisory opinions, the Commissioner consistently has opined that the classification of data about elected officials depends upon whether the entity considers the elected official to be an employee. If so, the data are classified pursuant to section 13.43. If not, the data are presumed public pursuant to the general presumption in section 13.03, subdivision 1.

In the case of this opinion, the District apparently has not taken a position regarding its Board members. Mr. Roszak and Mr. Waldspurger state, ...the School Board has not formally determined whether Board members are 'employees' for purposes of [Chapter 13]. It is the Commissioner's opinion that the District is in the best position to make this determination. If the District considers the Board members to be employees, the data are classified pursuant to section 13.43. If the District does not consider the Board members to be employees, the data are presumed public pursuant to section 13.03, subdivision 1.

Issue 2

Pursuant to Chapter 13, are the two names and one job title in paragraph 2(B) of the letter private personnel data, given that the names and job title are linked to unspecified issues ?

As discussed in the Facts section of this opinion, a part of the letter at issue states, We're referring to the issues of [the name of a District employee], [the name of a specific job position in the District] and [the name of a District employee].

Pursuant to section 13.43, subdivision 2, the name of an employee is public. The issue here is whether the addition of the words, We're referring to the issues of... releases any not public data about the two named employees. The Commissioner is of the opinion that, in this instance, the word issues is so nebulous that it does not appear to reveal any private data about either of the employees. However, it is important to note that the Commissioner does not understand the nuances of the dispute within the District. Thus, although unlikely, it is possible that the data about the employees, together with the word issues, might reveal private data.

Pursuant to section 13.03, subdivision 1, a job title, in and of itself, is public data. Further, pursuant to section 13.43, subdivision 2, a job title connected to the name of an employee is public data. As the Commissioner stated above, it is remotely possible that somehow adding the word issues releases not public data. However, this does not appear to be the case.

It appears, therefore, that the two names and one job title in paragraph 2(B) of the letter are public data.

Issue 3

Is the February 12, 2002, correspondence between elected officials private data under Minnesota Statutes, section 13.601, subdivision 2?

Section 13.601, subdivision 2, states, Correspondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient.

The Commissioner has addressed this issue in several previous advisory opinions. He consistently has opined that section 13.601 applies only if the correspondence in question is between members of the public and elected officials. See Advisory Opinions 97-002, 97-014, and 98-052. In this case, two elected officials, acting in their capacities as elected officials, wrote a letter to another elected official, in his/her capacity as an elected official. Because all of the parties are acting in their official capacities, doing their required work, section 13.601 does not apply and the District cannot use it as a basis upon which to classify the data.

Issue 4

Is the February 12, 2002, correspondence public data under Minnesota Statutes, Chapter 13?

As stated above in the discussion related to Issue 1, the classification of data about an elected official depends upon whether or not the government entity considers, for the purposes of Chapter 13, the elected official to be an employee. Here, the District has not made such a determination.

If the District considers the Board member who is the subject of the letter to be an employee, data in the letter are classified pursuant to section 13.43. For example, the letter contains an address. Pursuant to section 13.43, a work address is public (section 13.43, subdivision 2(a)(7)) but a home address is not (section 13.43, subdivision 4). Also, for example, if a complaint has been made against the board member, the existence and status of the complaint is public. See section 13.43, subdivision 2(a)(4).

Conversely, if the District does not consider its Board members to be employees, then all data in the letter appear to be public.

Finally, the Commissioner has the following comments on the remarks that the subject of the letter submitted on his/her behalf. S/he wrote, I handed the letter out to each board member at the public board meeting...I was informed that if information is distributed at a board meeting it is public information.

S/he further wrote:

The typical agenda at the Pipestone-Jasper school board meeting consists of three line items at the end of the agenda. These items are the following 1. Student School Board Member Report 2. School Board Members 3. Superintendent's Report. I distributed the letter during the School Board Members portion of the agenda. The purpose of distributing this letter was to defend accusations that had been made against me.

Public bodies, such as school boards, are subject to Minnesota Statutes, Chapter 13D, the open meeting law. Chapter 13D requires most meetings of public bodies to be open; however, under very specific circumstances, some meetings can be closed. In this case, the data subject states s/he handed out a copy of the letter at a public meeting. The Commissioner assumes this means open. The data subject also stated his/her belief that if the information is distributed at a board meeting it is public.

It is important to remember that a discussion of not public data at an open meeting does not classify those data as public. The open meeting law allows for not public data to be disclosed without liability or penalty if the disclosure relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business of or agenda item before the public body. See section 13D.05, subdivision 1(b). In addition, the open meeting law provides, Data discussed at an open meeting retain the data's original classification; however a record of the meeting, regardless of form, shall be public. See section 13D.05, subdivision 1(c).

In this case, Mr. Roszak and Mr. Waldspurger asked the Commissioner to comment on the classification of the data in the letter as those data exist at the District. Therefore, the issue of how the letter was treated at the board meeting is not relevant.

The Commissioner notes, however, that pursuant to subdivision 6 of section 13D.01, ...at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and (1) distributed at the meeting to all members of the governing body...shall be available in the meeting room for inspection by the public while the governing body considers their subject matter.

The Commissioner does not know whether the letter was an actual agenda item. If it was, and if its contents are public data, a copy should have been provided to members of the public.

Opinion:

Based on the facts and information provided, my opinion on the issues that Mr. Roszak and Mr. Waldspurger raised is as follows:

Signed:

David F. Fisher
Commissioner

Dated: March 27, 2002