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Advisory Opinion 94-034

August 24, 1994; School District 742 (Saint Cloud)

8/24/1994 10:14:43 AM

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.

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.

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:

On August 1, 1994, PIPA received a request for an opinion from Mr. Gordon H. Hansmeier, the attorney for Independent School District 742, the St. Cloud Community public schools, and hereinafter District 742. In his request for an opinion, Mr. Hansmeier related the following. He also provided copies of certain correspondence, a draft of a request for a court review of documents and an affidavit from the acting superintendent of schools of District 742.

District 742 employed X as a principal at one of its elementary schools. District 742 maintained a personnel file and a separate building file about X. The building file contained references to her job performance and comments from the public. In addition to these files, District 742 also had other documents concerning X which were kept by the District's superintendent. These documents consisted of notes of meetings, notes of discussions, correspondence directed to the superintendent and a few other miscellaneous documents.

In a letter dated May 25, 1994, Mr. Dale G. Swanson, X's attorney, asked Ms. Lenore Janman, District 742's acting superintendent, for copies of . . . all data of which she (X) is the subject. He elaborated on this request by pointing out that the request was not to be limited by what District 742 might consider to be files about X, or her personnel file but was intended to be . . . coextensive with the breadth of access described in the Data Practices Act . . . . Mr. Swanson enclosed a signed and dated request from his client in which she requested . . . copies of any and all data collected, created, received, maintained or disseminated by Independent District No. 742 of which I am a subject, wherever generated, however filed and wherever stored.

District 742 decided it would release the personnel file and the building file to X. The District initially decided to request the district court to review the other documents in camera and to determine if they were releasable by court order pursuant to Minnesota Statutes Section 13.32, subdivision 3. After further discussion with Mr. Swanson, Mr. Hansmeier agreed with Mr. Swanson that the issue, summarized in the Issue section below, would instead be submitted as a request for an opinion to the Commissioner of Administration, hereinafter Commissioner.



Issue:


The issue raised by Mr. Hansmeier, as summarized by the Commissioner, is as follows:
Are the documents, other than the personnel file and the building file, that have been requested by the employee subject to disclosure to the employee given the nature by which those documents were generated, kept and maintained in the District?


Discussion:

More information about the data at issue in this matter is provided in the affidavit of Ms. Janman. She described these other documents as materials handed to her by the former superintendent of schools. Ms. Janman stated she believed that these were documents contained in personal files of the former superintendent and were never made part of the official District files. They were not filed with the personnel office or maintained in any usual files within District 742. The documents contain notes made by the former superintendent during meetings as well as correspondence to the former superintendent from persons . . . who may have had an expectation of privacy when corresponding with him. Although it is not explicitly stated in the affidavit, it seemed clear that the notes, letters and other documents must contain data about X or there would be no issue presented as to whether or not she had access to those documents.

The issue presented here is very similar to the issue presented to the Commissioner in a opinion she issued on May 25, 1994, concerning the right of an employee of the City of Brooklyn Park to gain access to data maintained about him by his supervisor. In that situation, the city took the position that certain data maintained by supervisors about employees under their supervision were not government data for purposes of the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13 and hereinafter Chapter 13 or the Act. In her May 25, 1994 opinion, the Commissioner concluded that not only were the data in question government data but that the data were also private personnel data and accessible by the employee.

In this instance, District 742's position appears to be that as these documents were not kept in the files the District has labeled personnel file or building file, an individual who is a subject of data contained in these documents is not entitled to the data in the documents. However, in enacting Minnesota Statutes Section 13.43, the legislature did not define personnel data as data contained in official personnel files. The legislature actually provided a very broad definition of personnel data by stating that: . . . 'personnel data' means data on individuals collected because the individual is or was an employee of. . . a . . . political subdivision. . . . (Minnesota Statutes Section 13.43, subdivision 1.) There appeared to be no dispute that X was employed by District 742. District 742 is a political subdivision for purposes of Chapter 13. (See Minnesota Statutes Section 13.02, subdivision 11.) Whatever data are actually contained in the documents in dispute appear to have been created, collected, received or maintained by the former superintendent because X was an employee of District 742.

In enacting Minnesota Statutes Section 13.04, subdivision 3, that provides individuals with access to private or public government data maintained about them, the legislature acknowledged that information stored about individuals, as it is used by government entities to make decisions, can have a great effect on the lives of those individuals. By giving individuals access to public and private government data maintained about them, the legislature has given individuals the power to see data that affects their lives, to determine what impact those data may have had on decisions made about them and to determine if the data maintained about them are accurate, complete and current. As more and more data are kept on individuals, the importance of the rights of individuals to gain access to data maintained about them becomes increasingly important.

Personnel data maintained about public employees are a type of data that can have immense significance for the professional and even the personal life of the employee. Decisions to offer employment, to keep someone employed, or to promote an employee are examples of critical decisions that are made on the basis of personnel data. The legislature acknowledged the criticality of those decisions by providing that, with certain exceptions, personnel data are private and are therefore accessible by an employee or former employee of a government entity. By providing a broad definition of personnel data and by providing for employee access to personnel data, the legislative policy clearly controls the answer to the issue presented here. For purposes of data subjects' rights to gain access to data maintained about them by their former employer, it makes no difference if the employer chooses to categorize the data in question as personal notes or files are not official files or data provided by others with an expectation of privacy. The data X seeks access to are within the definition of personnel data as stated in Section 13.43. It does not appear that District 742 has a basis for classifying these data as confidential. The data are private personnel data and copies of its should be provided to her.

It is possible that the letters referred to in Ms. Janman's affidavit may be letters from individuals who discussed data concerning students or other staff of District 742. It is not clear from the information provided by District 742 just what is contained in the letters. If the contents of the letters, either in whole or in part, are educational data, pursuant to Minnesota Statutes Section 13.32, or personnel data on other employees of District 742, then it may be necessary for the District to withhold some or all of the content from X. Except for letters that contain data classified as not public, a letter sent to an entity subject to Chapter 13 will normally, upon its arrival in the government entity, be subject to the presumption in Minnesota Statutes Section 13.03, subdivision 1, that all government data, including those letters received by a government entity, are public. In the case of letters of complaints concerning a public employee, the complainant clearly has no recognized expectation of privacy. (See Demers v. City of Minneapolis, 468 N.W. 2d 71 (Minn. 1991).)


Opinion:


Based on the correspondence in this matter, my opinion on the issue raised by Mr. Hansmeier is as follows:
Data that identify an employee or former employee and that are contained in documents that are stored outside a school district's official personnel or building files are still personnel data for purposes of Minnesota Statutes Section 13.43. Pursuant to that section and to Minnesota Statutes Section 13.04, subdivision 3, copies of data contained in those documents are accessible by the employee or former employee.

Signed:

Debra Rae Anderson
Commissioner

Dated: August 24, 1994


Legislative authority and intent

Personnel data

Data subject access

Complainant identity

Supervisor file

Personnel files

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