December 3, 1993; Minnesota Department of Education
12/3/1993 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.
Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation. Facts and Procedural History:On October 22, 1993, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Ms. Sonja Kerr who is the attorney for X, a minor and his parents. X was a student in a program called Family Focus which is operated by Intermediate School District Number 287, hereinafter District 287. The facts she alleged in her request, involving the Minnesota Department of Education (hereinafter MDE ) were as follows.On August 11, 1993, Ms. Kerr wrote to MDE and requested a copy of contents of a file that MDE had created and collected in response to certain complaints made by X's parents. Along with her request, she included a copy of a release of information form from X's parents. According to Ms. Kerr, the Department sent a copy of the file to her on August 30, 1993, and she received the copy on September 2, 1993. She stated that at no time did the Department ask to take longer than five days to provide the copies. On September 30, 1993, Ms. Kerr wrote to the MDE and asked why there had been a delay in responding to her August 11, 1993, letter. In a letter dated October 1, 1993, Ms. Barbara Stilwell, an investigator for the Department, responded that Ms. Kerr's initial request was received in MDE on August 14, 1993, that contact was had with the Attorney General's office to determine what parts of the file could be released, that a response was received from the Attorney General's office on August 21, 1993 and that the data requested was then given to clerical staff to copy and mail to Ms. Kerr. Also in the September 30, 1993, letter, Ms. Kerr raised an issue with MDE about its jurisdiction to issue violations against a school district for failing to provide records within the timeframes provided by Chapter 13 of Minnesota Statutes when it appears that MDE has authority to enforce these kinds of issues under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g, (FERPA). Ms. Stilwell's October 1, 1993, letter stated that MDE's authority to enforce the FERPA derived from federal law but her letter did not make a definitive statement as to the Department's position on its authority to enforce Minnesota Statutes Chapter 13. Ms. Kerr, in her October 21, 1993, letter requesting a Commissioner's opinion, then asked for a variety of opinions on issues involving a local school district and MDE. This opinion only involves the issue concerning MDE. The issues involving the local school district were the subject of an opinion issued separately on November 12, 1993. In response to Ms. Kerr's request for an opinion, PIPA, on behalf of the Commissioner wrote to Linda Powell, Commissioner of MDE. The purpose of this letter, dated October 28, 1993, was to inform MDE of Ms. Kerr's request for an opinion, to acquaint MDE with the Commissioner of Administration's authority to issue opinions, to ask MDE or its attorney to provide any information to explain the actions taken or not taken and to inform MDE of the date on which the Commissioner was required to issue this opinion. On November 9, 1993, PIPA received via facsimile transmission a letter from Mr. Robert J. Wedl, Assistant Commissioner of MDE. Although this letter offered some information and arguments about the Commissioner of Administration's authority in this matter, the letter also requested additional time within which to respond. MDE asked to examine all of the information submitted by Ms. Kerr when she requested an opinion. In a letter dated November 16, 1993, PIPA wrote to Mr. Wedl transmitting copies of the information provided by Ms. Kerr to him and informed him that MDE had until November 30, 1993, to submit additional information. On November 20, 1993, PIPA received a letter from Mr. Wedl that stated, after review of the documents submitted by Ms. Kerr, that MDE would not be submitting additional information. The November 9, 1993, letter submitted by Mr. Wedl offered the following. Mr. Wedl made a variety of arguments as to why Ms. Kerr's opinion requests exceed the scope of the opinion authority conferred on the Commissioner by the legislature. A more detailed review of MDE's position in those arguments will be found below. After arguing the Commissioner's lack of authority, Mr. Wedl did offer for the record that the file in question was over 500 pages in length and that it was provided on the 11th business day after Ms. Kerr's request was received. Mr. Wedl stated that during that time MDE was consulting with its attorney to determine if the investigative file was closed and could be released. Mr. Wedl also offered additional argument as to another issue raised by Ms. Kerr that will be discussed below.
Issues:
In her request for an opinion, Ms. Kerr stated the issues involving the Department of Education as follows:
Discussion:
Before offering opinion on each of the specific issues raised by Ms. Kerr, the basic question of the authority of the Commissioner in this matter, as raised by Mr. Wedl, must be addressed. The plain statement of that authority, as it relates to requests from individuals for opinions, is found in the 1993 enactment. Chapter 192 states: Upon request of any person who disagrees with a determination regarding data practices made by a state agency, statewide system or political subdivision, the commissioner may give a written opinion regarding the person's rights as a subject of government data or right to have access to government data. (Minnesota Session Laws 1993, Chapter 192, Section 38.)
In her request for an opinion Ms. Kerr's raised the issues quoted above. In summary, those issues are: is MDE responsible for reviewing a school district's compliance with the MGDPA; did the MDE fail to provide data within the time frames required by the MGDPA; and did the MDE fail to include certain information in procedure required to be prepared in writing by all entities subject to the MGDPA? Ms. Kerr argues that each of these issues affects the rights of her clients under the MGDPA and that they are entitled to receive an opinion under the Commissioner's opinion authority. Mr. Wedl responds that for the Commissioner to offer an opinion on these issues would exceed the authority conferred on the Commissioner by the legislature. The Commissioner's authority, as summarized from Chapter 192, is to review requests for opinions from persons who disagree with a determination of a government entity regarding data practices and to give opinions to those persons regarding the person's rights as a subject of government data or the right to have access to government data. Ms. Kerr's first request clearly indicates a disagreement with the position taken by the MDE about whether it has the authority to review school district compliance with the MGDPA. If the MDE has that authority, MDE's review of a school district's practices regarding government data could have a distinct effect on Ms. Kerr's clients. For example, if an administrative remedy for an alleged violation of the MGDPA were available from the MDE, Ms. Kerr's clients would have to exhaust that remedy before they could take other legal action. Failure to exhaust an administrative remedy can have a distinct and negative effect on a data subject's right under the MGDPA. (See Bohn v. County of Dakota, 772 F.2d 1433 1985.) The first issue raised by Ms. Kerr's involves a data practices issue potentially implicating the rights of her clients under the MGDPA and therefore it is appropriate for the Commissioner to issue an opinion concerning that issue. In the second issue, Ms. Kerr is asking whether the data practice of the MDE in not responding to her clients' request for access to data within timeframes required by the MGDPA violated her clients' rights under the Act. This issue clearly involves a determination regarding data practices made by the MDE that affects Ms. Kerr's clients. Given the language of Chapter 192, this issue is also appropriate for an opinion of the Commissioner. In the last issue, Ms. Kerr asks whether the MDE was required to include certain information in a public document that the MGDPA requires each state and local government entity in this state to prepare. The practices utilized by an entity to prepare or not prepare this document and its decisions about the content of the document can have an effect on a data subject's rights under the MGDPA. Therefore, this issue is also appropriate for an opinion of the Commissioner. Issue 1:Is it a responsibility of the MDE to review a school district's compliance with the MGDPA?As described above, Ms. Kerr previously raised this issue with the MDE. She did not receive a clear response to her request from the Department of Education. In his November 9, 1993, letter, Mr. Wedl reviews MDE's authority under federal apply to enforce special education law and, to the extent that federal special education law adopts FERPA requirements, to also enforce those requirements. However, he does not provide a direct response to Ms. Kerr's question as to MDE's responsibility to review a school district's compliance with the MGDPA. Although she has raised this issue with MDE and in her request for this opinion, Ms. Kerr has not offered information or citations that would support a finding that the MDE is responsible for reviewing school district compliance with the MGDPA. Review of the MGDPA itself and Minnesota Statutes Section 120.17, the state special education statute, reveals no legislative direction that could be interpreted to require the MDE to review school district compliance with Chapter 13. Although MDE might choose to assist school districts with their compliance with the MGDPA, no information has been offered to or discovered by the Commissioner that would lead to a conclusion that MDE is required to review compliance. Issue 2:Did MDE fail to provide data within the time frames required by the MGDPA?The primary section stating rights of data subjects to gain access to data maintained about them is section 13.04 of the Data Practices Act. Minnesota Statutes Section 13.04, subdivision 3 provides that, upon his or her request, a data subject must be provided with access to public or private data concerning that subject. The subdivision goes on to state that the responsible authority shall comply with a data subject's request for access ... immediately, if possible,... or within five days of the request, excluding Saturdays, Sundays and legal holidays if immediate compliance is not possible. The subdivision goes on to state that a responsible authority may gain an additional five days to comply with a request if the responsible authority cannot, for good reason, comply within the first five days, by informing the data subject of the need for additional time. This five day requirement covers both requests to inspect and requests to receive copies of data. According to Ms. Stilwell's October 1, 1993, letter, Ms. Kerr's initial request was received in MDE on Friday, August 14, 1993 . August 14 1993, is actually a Saturday. It is reasonable to conclude that Ms. Stilwell did intend to say that Ms. Kerr's request was received on Friday August 13, 1993. According to Ms. Kerr, she received the copy of the file on September 2, 1993. She provided a copy of Ms. Stilwell's August 30, 1993, letter transmitting the copy of the file. This copy carries a combination stamped and handwritten received notation of September 2, 1993. When a request for receipt of copies of private data is made within the provisions of Section 13.04, subdivision 3, the MGDPA imposes certain obligations on the government entity to assure that the rights established by the provision are actualized. The government entity is required to provide the copies requested immediately. If immediate compliance is not possible, the entity is required to provide the copies within five working days. If the entity cannot comply within the first five working days, and it informs the individual of its inability to comply, the entity gains an additional five working days within which to comply. In summary, once it receives a request to provide copies of private data, the entity is required by Section 13.04, subdivision 3 of the MGDPA to provide the copies within five days. In this instance, MDE received the request for receipt of copies of data on August 14, 1993. It actually provided the data to the requestor on September 2, 1993. Fourteen working days transpired between the receipt of Ms. Kerr's request and her receipt of the copy of the file. It is MDE's position, that it provided the file on the 11th business day. The 11 day result can only be achieved if the date of Ms. Stilwell's letter transmitting the copy is used as the day on which the Department responded. However, the Department's obligation, under Minnesota Statutes Section 13.04, subdivision 3 was to actually provide the copies within a certain time frame. By choosing to mail the copies, as opposed to informing Ms. Kerr they were available for pickup on August 30, MDE added additional days to its response time. In either case, 11 days or 14 days, it is clear that Ms. Kerr did not receive copies of the records within the five days required by Minnesota Statutes Section 13.04, subdivision 3. At no time in the initial five day period after receipt of Ms. Kerr's request, did MDE indicate to Ms. Kerr that the copies could not be provided within the required timeframe. In order to gain the additional five days within which to comply, MDE was required to inform Ms. Kerr of its inability to comply within five days. For some reason, it chose not to do so. Mr. Wedl's argument on MDE's delayed response is that the file was large and because of the nature of the file it had to be reviewed with the Department's attorney. This need for review could have been communicated to Ms. Kerr within five days of her initial request. By not doing so, MDE deprived itself of its ability, under Section 13.04 subdivision 3 to gain an additional five days to comply. The MGDPA requires compliance with a request for copies, and other requests made under Section 13.04, subdivision, within five to ten days. This have been a requirement of the MGDPA since 1977. (See Minnesota Session Laws 1977, Chapter 375.) In addition to the clear statement of this requirement in Section 13.04, the MGDPA and its implementing rules also require MDE to prepare and follow written procedures to assure and assist compliance with Section 13.04, subdivision 3. (See Minnesota Statutes Section 13.05, subdivision 8 and Minnesota Agency Rules Section 1205.0400.) Once the MDE received Ms. Kerr's initial request, it knew or should have known that to be able to comply within five days it would have to have an extensive file reviewed by its attorney and arrange for the delivery of the copy of the file no later than August 20, 1993. The MDE did not do so. As an alternative, the MDE could have informed Ms. Kerr between August 16, 1993 and August 20, 1993 that is was not able to comply before August 20 and needed until August 27. The MDE did not do so. Issue 3:Did the MDE fail to include certain information in the public document required by Minnesota Statutes Section 13.05, subdivision 8? Ms. Kerr's essential argument about this issue is that this requirment is a function of Minnesota Statutes Section 13.05, subdivision 8. Minnesota Statues Section 13.05, subdivision 8 reads as follows.
MDE's position on this issue, as stated in Mr. Wedl's November 9, 1993, letter is that nothing in Minnesota Statutes Section 13.05 or any other portion of the MGDPA requires the MDE to inform individuals of their right to file legal claims for violations of the MGDPA. An examination of Section 13.05, subdivision 8, makes it clear that the public document that is required to be prepared by the subdivision is a document that tells the public how they can specifically assert their rights under Section 13.04 in the government entity that prepared the document. The rights described in Section 13.04 includes rights to be informed of certain things in data collection situations, to gain access to data and to challenge data. The purpose of the public document is to make it easier for individuals to actualize these rights by being told by a government entity who to see, how to make contacts with the entity and those other detailed things that actually make up the process the entity will follow to respond to an individual's attempt to exercise the rights conferred by Section 13.04. The right to bring a legal action under the MGDPA is not a right covered in Section 13.04. There was no requirement in Section 13.05, subdivision 8 or elsewhere in the MGDPA that the MDE inform X's parents of their right to file lawsuits for MGDPA violations. In his comments on this issue Mr. Wedl stated that if Ms. Kerr's interpretation of Section 13.05, subdivision 8 were correct that certain notices prepared by PIPA, copies of which were submitted with Mr. Wedl's letter, would be defective. It should be noted for the record that the notices described by Mr. Wedl are not the public document required by Minnesota Statutes Section 13.05, subdivision 8. Among its other functions, PIPA assists members of the public by providing them with information and assistance concerning their rights under the MGDPA. These so-called notices are actually public information handouts prepared for public distribution and are not prepared because of a duty imposed on PIPA by the MGDPA. Opinion:Based on the correspondence in this matter, my opinions on the issues raised by Ms. Kerr are as follows:
Signed:
Debra Rae Anderson
Dated: December 3, 1993
|
Data subjects
Policies and Procedures
Response to data requests
Department of Education
Data subject rights of access procedures (13.05, subd. 8)/(13.025, subd. 3)
