Facts and Procedural History:

On September 7, 2004, IPAD received a letter from Bill Slowter. In his letter, Mr. Slowter asked the Commissioner to issue an advisory opinion regarding a determination made by Independent School District 276 (Minnetonka) about a data practices issue.

In response to Mr. Slowter's request, IPAD, on behalf of the Commissioner, wrote to Dennis Peterson, District Superintendent. The purposes of this letter, dated September 7, 2004, were to inform him of Mr. Slowter's request and to ask him to provide information or support for the District's position. On September 27, 2004, IPAD received a response from Joseph E. Flynn, an attorney for the District. A summary of the facts of this matter follows.

In a letter dated March 25, 2004, Mr. Slowter wrote to Peggy Stefan, the District School Board Chair, and raised questions regarding whether X, a former School Board member, had violated provisions of Chapter 13. In a letter dated April 15, 2004, Ms. Stefan responded:

Finally, I can acknowledge that when a complaint is raised, as you have done in this [the March 25, 2004] letter, we will investigate that complaint and if we believe action is appropriate would so act. However, it would appear, given my understanding of data practices law, that such investigation and actions would be private under the law.

In a letter dated May 5, 2004, Mr. Slowter wrote to Ms. Stefan, and asked for [t]he existence and status of any complaints against [X] during [his/her] tenure on the Board. Mr. Slowter also sent that letter to Michael J. Lovett, Assistant Superintendent for Human Resources and the District's Data Practices Compliance Official (DPCO).

In a letter dated July 28, 2004, Ms. Stefan replied:

By letter dated March 25, 2004, you made inquiry regarding various alleged conversations with School Board member [X] and inquiring whether certain alleged conversations with [X] and various persons relating to the reorganization of the Arts Center constituted a 'possible' violation of data privacy. Please be advised that I have investigated these inferences [sic] and find no evidence of any data privacy violations as suggested in your letter.

. . . . As you know, elected officials are the subject of frequent comment by various individuals, but there are no complaints on file in School District offices relating to any formal complaints against [X] or any other board members. Also there are no complaints or evidence of any data privacy violations on file, with the exception of your letter dated March 25, 2004.

Mr. Slowter wrote to the Commissioner:

I am troubled by the District's response. First, it doesn't seem reasonable to require almost 3 months before responding to a simple, straightforward request. Secondly, I'm puzzled by their lack of data. I served on the Minnetonka School Board from 1998 though [sic] 2001 and [X] joined the Board in 2000. During my term as Chair, in October of 2000, a formal complaint was made against [X]. Furthermore, in a letter to another Minnetonka resident dated December 12, 2002 (copy enclosed) that complaint was acknowledged.

The December 12, 2002, letter to which Mr. Slowter referred contains the following statements, under the heading Investigation:

A complaint was made against [X]. Based on the fact that no disciplinary action resulted from the investigation, the School District is not permitted to identify the substance of the charge, as such data is classified as private personnel data pursuant to Minnesota Statutes Section 13.43.

Mr. Flynn provided the Commissioner with copies of letters and e-mails between Mr. Slowter and the District, which Mr. Flynn said address overlapping and similar questions . . . . References to the documents will show that Mr. Slowter communicated with Dr. Lovett on numerous occasions from March 25, 2004, through June 29, 2004, addressing various facets of the information request . . . .

Mr. Flynn stated, . . . there was confusion relating to the communication regarding [Mr. Slowter's] request dated May 5, 2004, since he sent both to the School Board chair, as well as [Dr. Lovett], creating some misunderstanding as to who was responding to the request. Mr. Flynn wrote that Ms. Stefan believed that she already had addressed 'the complaint question' relating to X in letters she wrote to Mr. Slowter dated April 15, 2004 and June 10, 2004.

Mr. Flynn stated: [f]inally, communications were delayed because of the summer recess and attendant vacations of School District personnel and correspondence related to clarification of Mr. Slowter's requests as evidenced in the enclosed communications. According to Mr. Flynn, . . . there were various circumstances which led to the delay in addressing Mr. Slowter's informational requests, including but not limited to . . . [t]he lack of clarity in Mr. Slowter's informational request and the mixing of data information requests with opinion and argument . . . [and] ongoing communications between Mr. Slowter and Dr. Lovett relating to necessary clarification to respond to Mr. Slowter's requests.

Mr Flynn wrote: [i]n summary, the line of numerous communications between the School District and Mr. Slowter demonstrate [sic] an ongoing, good faith effort on the part of the School District to provide responses to the data requests of Mr. Slowter.

Mr. Flynn also discussed Mr. Slowter's question about why the District told him that there were no complaints against any Board members, when, in Dr. Lovett's letter of December 12, 2002, to a third party, Dr. Lovett referred to a complaint against a Board member and subsequent investigation. According to Mr. Flynn, Ms. Stefan believed the complaint data sought by Mr. Slowter in his May 5, 2004, request, related to the allegations he (Mr. Slowter) made against X in his March 25, 2004, letter. As noted above, Ms. Stefan discussed her investigation of those allegations in her July 28, 2004, letter to Mr. Slowter.

Mr. Flynn wrote: Mr. Slowter's opinion request . . . suggests that during his term as School Board Chair in October 2000, a formal complaint was made against X and that this was acknowledged by the School District in a communication dated December 12, 2002 . . . . Mr. Flynn stated that Mr. Slowter reached an erroneous conclusion that Ms. Stefan was inaccurate when she stated to him in her July 28, 2004, letter that there are no formal complaints against X or any other School Board member on file with the School District.

According to Mr. Flynn, in a letter dated October 7, 2000, Mr. Slowter, who was then School Board Chair, and the then-Vice Chair, raised questions as to whether or not data privacy rights [of a student and District employee] had been violated . . .by [X]. Mr. Flynn stated that they were not alleging a data privacy violation by School Board member [X] but were calling upon legal counsel to review certain documents and to conduct an investigation to make such a determination.

According to Mr. Flynn, in apparent reference to the December 12, 2002, letter to the third party, [a]pparently Dr. Lovett, who was not involved in the matter, but was aware of it by hearsay information, took it as a 'complaint' within the generic usage of the word.

Mr. Flynn, in apparent reference to the October 7, 2000, letter from Mr. Slowter, further stated: School Board Chair Stefan did not regard it as a 'complaint' within the meaning of Minnesota Statutes, Chapter 13, but rather regarded it as an inquiry letter . . . . Part of the confusion resulted because apparently Mr. Slowter was asking about the very document that he in fact coauthored . . . .

Mr. Flynn wrote:

In summary, it is respectfully suggested that the October 7, 2000, 'letter of inquiry' was not a 'complaint' within the meaning of Chapter 13, and this determination created some confusion because Dr. Lovett regarded it as a complaint, at least generically speaking, and School Board chair Stefan regarded it simply as an inquiry. This conclusion is further reinforced because the School District would hardly be attempting to conceal a document from the person who coauthored it and obviously had it in his possession.

Issue:

In his request for an opinion, Mr. Slowter asked the Commissioner to address the following issue:

Did Independent School District 276 (Minnetonka), comply with Minnesota Statutes, Chapter 13, in its response to a May 5, 2004, request for public data?

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Discussion:

Pursuant to Minnesota Statutes, section 13.43, subdivision 1, 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 all remaining personnel data as private.

The data at issue here relate to X, a former District 276 School Board member. School Board members are elected officials. Chapter 13 does not contain a specific classification for data about elected officials. However, the Commissioner 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 section 13.03, subdivision 1. As the Commissioner opined in Advisory Opinion 99-043:

Mr. Roszak further stated: School Board members cannot be treated the same as employees because School Board members are, in effect, the employer and generally cannot be held accountable to a superior other than the public. If data on School Board members were private, then no mechanism for accountability to the public would exist and one of the overall objectives of the [Minnesota Government Data Practices] Act would be frustrated.

According to Mr. Roszak, the School District does not consider School Board members to be employees, but rather elected officials without employee status. The Legislature did not provide a definition of employee in section 13.43. The American Heritage Dictionary - Second College Edition, Houghten Mifflin Company, 1985, definition of employee as a person who works for another in return for compensation is inconclusive.

A review of several statutes relating to public employees also appears to be inconclusive. Elected officials are considered employees for purposes of worker's compensation, but not for unemployment compensation or eligibility under the Public Employee Labor Relations Act. (See section 176.011, subdivision 9 (6), section 268.035, subdivision 20 (12), and section 179A.03, subdivision 14 (a).) Pursuant to section 471.61, subdivision 1, a school district (among other government entities) may elect to offer group life, health and/or accident insurance to its officers and employees. According to Mr. Roszak, the District has so elected. In addition, under the same statute, a school district (among others) may determine that a person is an officer or employee if the person receives income from the governmental subdivisions without regard to the manner of election or appointment . . . .

However, it is the District's position that School Board members are not District employees, and ultimately it is up to the District to make that determination. The Commissioner believes it is reasonable for the District to reach the conclusion that School Board members are not employees, particularly in light of Mr. Roszak's comments concerning public accountability concerns. Accordingly, absent any statute or federal law that provides otherwise, data maintained by the District about any of the School Board members, including data relating to the School Board's deliberations about the allegations against the Board member, are public, pursuant to Section 13.03, subdivision 1.

The Commissioner notes that the result is that data about elected officials is treated inconsistently in different government entities. Nonetheless, here, the District apparently has determined that its Board members are employees for purposes of Chapter 13; accordingly, the data at issue here are classified as personnel data under section 13.43.

Pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(4), the following data are public: the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action.

The October 7, 2000, letter from Mr. Slowter and the Board Vice Chair to Mr. Flynn contains the following statements:

We asked you a very simple question - 'What is our responsibility when possible data practices infractions surface?' Your response was quick and succinct. You indicated that our strict adherence to data practices guidelines is a very serious matter and we have a clear obligation to investigate possible violations, and if necessary, take action.

We don't believe that the Board should investigate, as we have neither the legal expertise nor the required objectivity. Thus, as Chair and Vice Chair, we are requesting that your firm, as District legal counsel, conduct an investigation into possible infractions.

The letter describes a phased review process for Mr. Flynn to follow, and concludes, [w]hile we're saddened by the need to make this request we strongly believe that protecting the interests of students and staff is our top priority.

Mr. Flynn states that the District takes the position that the October 7, 2000, letter was a letter of inquiry, and does not constitute a complaint or charge within the meaning of section 13.43. The Commissioner respectfully disagrees.

According to the information provided the Commissioner, at least two Board members discussed with the District's legal counsel their concerns that another Board member had violated Minnesota Statutes, Chapter 13. The October 7, 2000, letter contains references to allegations raised in those discussions, which Mr. Flynn, as the District's legal counsel, subsequently investigated.

In his response to the Commissioner, Mr. Flynn stated that he did conduct an investigation and ultimately made a report to the School Board. . . . . The School Board determined not to take any disciplinary action against [X] . . . .

Furthermore, Dr. Lovett, the District's DPCO, referred to the allegations made against X as a complaint in his December 12, 2002, letter, and stated the data that identify the substance of the charge were classified as private because the investigation of the complaint did not result in disciplinary action, as provided under section 13.43.

Mr. Flynn stated that Dr. Lovett was using the generic meaning of complaint in that letter. However, because the Legislature did not define complaint or charge in section 13.43, the generic or plain meaning is applicable. (See section 645.17, and Advisory Opinion 97-003, which discusses the applicability of dictionary definitions of those terms.)

Given the context here, i.e., that two School Board members made allegations that another Board member violated provisions of state law, resulting in an investigation and report by the District's legal counsel, the Commissioner is of the opinion that those allegations constitute a complaint or charge within the meaning of section 13.43, subdivision 2 (4). Accordingly, the District erred in stating otherwise to Mr. Slowter.

With respect to the timeliness of the District's response to Mr. Slowter, when an individual requests data of which s/he is not the subject, a government entity must respond in an appropriate and prompt manner (see Minnesota Statutes, section 13.03, subdivision 2(a)) and within a reasonable time (see Minnesota Rules, section 1205.0300).

Mr. Flynn stated that among several factors that contributed to the delay in the District's response were the District's need for clarification, and misunderstanding as to who within the District was responding to the request. If the District needed to clarify with Mr. Slowter what data he meant by [t]he existence and status of any complaints against [X] during [his/her] tenure on the Board, it needed to do so upon receipt of his request. Furthermore, the District stated Mr. Slowter's request was confusing because he directed his data requests to both Ms. Stefan and Dr. Lovett. However, the record does not show that the District asked him to do otherwise, and they both responded to his inquiries. If the District has not done so, it should implement the policies and procedures necessary to ensure it responds appropriately to data requests pursuant to Chapter 13.

The District did not respond directly to Mr. Slowter's May 5, 2004, request for data until July 28, 2004. That response time is neither prompt nor reasonable.

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Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Slowter is as follows:

Independent School District 276 (Minnetonka), did not comply with Minnesota Statutes, Chapter 13, in its response to a May 5, 2004, request for public data.

Signed:

Kent Allin
Acting Commissioner

Dated: October 15, 2004

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