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Facts and Procedural History:
For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen 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 that are not public, are available for public access.
On April 1, 1996, PIPA received a letter requesting an advisory opinion from Roger A. O'Connor. In that letter, Mr. O'Connor described his attempts to gain access to certain data maintained by School District # 834, the Stillwater Area School District. Mr. O'Connor's request required clarification with PIPA staff, with respect to the issues he wanted to be addressed, which Mr. O'Connor provided in telephone calls and additional correspondence. During the time PIPA was clarifying the issues with Mr. O'Connor, he asked the District for access to additional data related to his earlier request. The District's response to Mr. O'Connor concerning the additional data he requested is also addressed in this opinion.
In response to Mr. O'Connor's request, PIPA, on behalf of the Commissioner, wrote to David L. Wettergren, Superintendent, Stillwater Area Schools. The purposes of this letter, dated April 23, 1996, were to inform Mr. Wettergren of Mr. O'Connor's request, to ask him or the District's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. O'Connor and Mr. Wettergren were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)
On May 8, 1996, PIPA received a response from Mr. Wettergren. A summary of the detailed facts of this matter follows.
According to Mr. O'Connor, the District hired a consulting firm, Synoptics, to evaluate the working atmosphere in the District. Synoptics prepared a report of its evaluation. Mr. O'Connor, in a manner unknown to the Commissioner, gained access to copies of the report and certain related District memoranda. According to Mr. O'Connor, when he asked the District for copies of the report and memoranda, the District refused to provide him with copies of either.
In a letter dated April 16, 1996, Mr. O'Connor wrote to the District, asking for access to the report, a District memorandum, and certain other related documents:
| In June of 1994 a memo was sent to all Stillwater Area Senior High School Staff regarding the seemingly uncaring and unsafe atmosphere at the Senior High School. Staff were asked to make any comments at the bottom of the memo. |
| I would like to request a copy of this memo. I would like also a copy of all of the nine pages of comments made by the staff regarding this memo.
. . . .
P.S. I would like to know which Minnesota Statute, rule, law you are citing when you refuse to allow me to get or make a copy of the Synoptics (57 page) report.
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In response to that request, Mr. Wettergren wrote to Mr. O'Connor, in a letter dated April 17, 1996:
| I have been advised that distribution of [the June 1994 memo Mr. O'Connor referenced in his request] may violate the Minnesota Data Privacy Law, MS 13.43 [sic]. |
| The Synoptics Report and related material was [sic] never meant for public distribution but for use within and by members of the [District] faculty and administration. You have never been denied the opportunity to read the report. At the request of the staff committee working with the report and in deference to the tenets set forth in MS 13.43, the report was not published for public dissemination. No one who has requested the opportunity to read the report has been denied. |
Subsequent to the Commissioner's notification that she intended to issue an advisory opinion on Mr. O'Connor's rights to gain access to copies of the data he requested, the District agreed that the Synoptics report was public, and provided Mr. O'Connor with a copy. PIPA staff asked Mr. O'Connor if he still wanted this opinion to be issued; he said that he wanted Issue 1 (see below) addressed.
In its response to the Commissioner, the District denied knowledge of the memorandum and staff comments requested by Mr. O'Connor, and, accordingly, stated that it was unable to provide him with access to data it did not maintain.
Issue:
In his request for an opinion, Mr. O'Connor asked the Commissioner to address the following issues:
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- Is Mr. O'Connor entitled to a copy of the District memorandum he referred to in his letter dated April 16, 1996? Is he entitled to a copy of the nine pages of comments made by District staff members?
- Is Mr. O'Connor entitled to a copy of the Synoptics Report?
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Discussion:
As noted above, after receiving notice of Mr. O'Connor's opinion request, the District correctly determined that the Synoptics report is public, and provided Mr. O'Connor with a copy. Therefore, the remaining issue to be addressed in this opinion is whether the District is obligated to provide Mr. O'Connor with copies of the memorandum and staff comments he requested.
In the statement of the issues to be addressed in this opinion, in her notice to the District, the Commissioner identified the data in question by reference to Mr. O'Connor's April 16, 1996, request to the District. In that request, Mr. O'Connor wrote:
| In June of 1994 a memo was sent to all Stillwater Area Senior High School Staff regarding the seemingly uncaring and unsafe atmosphere at the Senior High School. Staff were asked to make any comments at the bottom of the memo. |
| I would like to request a copy of this memo. I would like also a copy of all of the nine pages of comments made by the staff regarding this memo. |
In his response to Mr. O'Connor, Mr. Wettergren stated I have been advised that distribution of this memo may violate the Minnesota Data Privacy Law, MS 13.43 [sic]. Mr. Wettergren did not respond to Mr. O'Connor's request for copies of the comments made by staff relating to the memo.
In his response to the Commissioner, Mr. Wettergren wrote:
| District Memorandum : I am unaware of any School District memorandum from June 1994 as described in [the Issue statement above.] The document is referred to as 'nine pages of comments made by District staff members.' I have heard rumors that some teacher or teachers may have generated such a memorandum, but it was not generated by my office or the School District administration, and I have never seen such a document. |
| Accordingly, we would not be in a position to provide a document that we did not generate nor have possession of. [Emphasis his.] |
Mr. O'Connor provided a copy of the memorandum at issue in this opinion. That memorandum, dated June 10, 1994, on what appears to be Stillwater High School stationery, is addressed to SAHS [Stillwater Area High School] Faculty/Staff from SAHS Administration and the Principal's Advisory Group. The text of the memo reads in part:
In recent weeks it has been suggested to the school board and the superintendent that the climate/atmosphere at Stillwater Area High School has been defined as uncaring and unsafefor some of the people who work here.
If you have any climate issues or concerns and possible solutions, you are invited to submit them in writing to the members of the 1994-95 Principal's Advisory Group whose names are listed below. Plese [sic] use the tear-off or other written formats and submit your concerns by the August 30th workshop day.
Submitted items will be compiled and processed by the Principal's Advisory Group (site-team) which will then create a forum for discussion in the fall. [Emphasis added.]
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It appears that Mr. O'Connor sufficiently identified the memorandum he was seeking in his April 16, 1996, request to the District. In his response to the Commissioner, Mr. Wettergren stated that he was unaware of the memorandum sought by Mr. O'Connor. However, in his original response to Mr. O'Connor, Mr. Wettergren stated that the memorandum was not public, pursuant to Section 13.43 (which governs personnel data.)
Minnesota Statutes Section 13.03, subdivision 1, provides that data collected, created, received, maintained or disseminated by a government entity subject to regulation under Minnesota Statutes Chapter 13, as is the District, are public data, unless there is a statute, temporary classification, or federal law which classifies the data as not public.
From the information provided, it does not appear that the June 10, 1994, District memorandum is classified as anything other than public. The memorandum does not contain any individually identifying information, other than the names of the members of the advisory group. Therefore, Mr. O'Connor is entitled to receive a copy of that memorandum from the District.
In his response to the Commissioner, Mr. Wettergren appears to confuse the June 1994 memorandum with the nine pages of District staff comments requested by Mr. O'Connor. He wrote:
| I am unaware of any School District memorandum from June 1994 as described [by Mr. O'Connor in his request to the District.] The document is referred to as 'nine pages of comments made by District staff members.' I have heard rumors that some teacher or teachers may have generated such a memorandum, but it was not generated by my office or the School District administration, and I have never seen such a document. |
Mr. O'Connor provided copies of the additional data he believes to be at issue. Those copies consist of six pages of questions and answers, headed Stillwater High School/Response To Questions From All Staff Meeting, dated November 8, 1994, and two other District memoranda, dated December 15, 1994, and January 12, 1995. The two memoranda make reference to the Synoptics report, but do not contain staff comments.
The six pages of questions and answers relate to the Synoptics evaluation and report. The questions fall into five categories:
- QUESTIONS ABOUT SYNOPTICS, FACILITATORS [sic] QUALIFICATIONS AND COSTS.
- QUESTIONS ABOUT THE OVERALL PROCESS
- QUESTIONS ABOUT THE FOCUS GROUP MEETINGS
- QUESTIONS ABOUT RECOMMENDATIONS IMPLEMENTATION
- QUESTIONS ABOUT WHAT WILL RESULT
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- The Commissioner is unable to determine, from the information provided by Mr. O'Connor, whether the District ought reasonably to have been able to identify the data he was requesting from his description of all of the nine pages of comments made by the staff. The District's position is that it neither created, nor maintains, data which fit Mr. O'Connor's description. The District may reasonably have reached that conclusion, based on Mr. O'Connor's description of the data he was seeking. However, Mr. Wettergren did not respond to Mr. O'Connor about his right to gain access to the data he requested. Mr. Wettergren should have told Mr. O'Connor what he told the Commissioner, i.e., that the District did not maintain data that fit Mr. O'Connor's description. Mr. O'Connor would then have had the opportunity to clarify with the District the data he was seeking.
According to Mr. O'Connor, the data he sought are the six pages of questions and answers, and the two other District memoranda, described above. It is possible that any comments submitted by District teachers, in response to the District's June 10, 1994, memorandum, may contain some private data pursuant to Section 13.43. Section 13.43 provides, in part, that certain data about public employees are public, and that all other data on employees not specified as public, are private. However, absent any individually identifying data that are classified as private, any comments received by the District in response to its June 10, 1994, memorandum are public data.
The District is obligated to make reasonable efforts to identify data it is requested to supply. The Commissioner does not believe, in the case of the nine pages of comments, that Mr. O'Connor sufficiently identified the data to which he was seeking access. However, if the District were uncertain as to exactly what data Mr. O'Connor was requesting, the District should have made a re_ onable attempt to clarify that with him at the time he made his request
Opinion:
Based on the correspondence in this matter, my opinion on the issues raised by Mr. O'Connor is as follows:
- According to the information provided, the June 10, 1994, District memorandum appears to be public government data. As such, Mr. O'Connor is entitled to a copy of the memorandum.
- As to the nine pages of comments, it is not clear whether Mr. O'Connor sufficiently identified the data to which he was seeking access. However, if the District were uncertain as to exactly what data Mr. O'Connor was requesting, the District should have made a reasonable attempt to clarify that with him at the time he made his request. Upon request, Mr. O'Connor is entitled to a copy of any public data contained in comments submitted to the District, by District staff, in response to the June 10, 1994, memorandum, if the District maintains such data.
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Signed:
Elaine S. Hansen
Commissioner
Dated: June 10, 1996
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