Facts and Procedural History:

On June 29, 2009, the Information Policy Analysis Division (IPAD) received a letter, dated June 26, 2009, from Darrell Ehrlick, on behalf of the Winona Daily News. In his letter, Mr. Ehrlick asked the Commissioner to issue an advisory opinion regarding the newspaper's right to have access to certain data Independent School District 861, Winona, maintains.

IPAD, on behalf of the Commissioner, wrote to Paul Durand, District Superintendent, in response to Mr. Ehrlick's request. The purposes of this letter, dated July 2, 2009, were to inform him of Mr. Ehrlick's request and to ask him to provide information or support for the District's position. Mr. Durand, responded, in an email dated July 27, 2009.

A summary of the facts follows. According to Mr. Ehrlick, a News reporter asked to inspect email correspondence between Mr. Durand and District School Board members from June 5- June 18, 2009. The District's response, dated June 22, 2009, which Mr. Ehrlick provided, states:

We reviewed your FOIA [sic] request of June 18, 2009. . . . . As Superintendent Durand shared with you, all communications will have to be reviewed for protected data and we may need to redact material before releasing it. Therefore, the Superintendent anticipates that this information will not be available prior to August 3.

In his comments to the Commissioner, Mr. Durand wrote that the News reporter had submitted a written request for access to the data in question after a School Board meeting on June 18, 2009. Mr. Durand asked him if there was "anything specific" he sought, and "offered to return to his office to get specific documents" for the reporter. The reporter declined, stating that his request was not for anything specific.

Mr. Durand stated that the District offices were closed on Fridays through the summer, and that he was out of the office from June 19, 2009 until July 3. He wrote:

The information requested needed to be checked for private data and would then be redacted if necessary. [The District Administrative Assistant] was also on vacation from June 24 until July 1, and the District offices closed on the afternoon of July 1, and did not reopen until July 7 . . . . Further, it is normally the duty of the District's Human Resources Director . . . to review and redact private information prior to data practices requests being finalized and sent. However, [the H.R. Director] was also away from the District on vacation during this time. While the vacations of three of the main individuals who handle data practices requests in the District might not grant the District more time to respond to a data request, as outlined in Advisory Opinion 04-076, it does explain the background associated with the District's response to the data practices request.

. . . . The procedure followed by District staff was similar to the procedure followed for another request that had been made by [another newspaper] earlier this spring seeking access to all e-mails between the Superintendent and school board members. In that situation, there were over 500 pages of documents that needed to be reviewed, protected data redacted, and a few questions referred to legal counsel to make sure there would be no illegal release of private data. This process took upwards of a month to complete. Based on this experience and the fact the staff did not have any idea how many e-mails were involved, the date of August 3 was selected and put in the response to [the News] while the Superintendent was absent from the District.

After reviewing and analyzing the requested information, the data . . . were made available . . . on July 14, 2009. This date was three and a half weeks after the request was formally made, a delay of only 11 actual District business days based upon the fact that the District offices were closed on Fridays and over the July 4th holiday.

The facts show that the District fully complied with the Data Practices Act in this case. The reporter was offered the chance to review specific documents immediately, the Superintendent informed the reporter of the possibility for delay based on the need for a thorough review of an unknown amount of email requested, [staff] later informed the reporter of the reasons for the delay, and the District actually produced the documents within 11 business days.

Issue:

Discussion:

Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. When a government entity receives a request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)

In his comments, Mr. Ehrlick wrote that the District telling him it anticipated that it would take six weeks to provide access to the data is neither a prompt nor reasonable response. In general, the Commissioner agrees. However, the District actually took 11 business days. Although the Legislature did not define "reasonable time," the Commissioner has stated in many previous opinions that it is relative to the volume and substance of the data requested. Mr. Durand did not state how many emails were involved, but given that Mr. Ehrlick asked for emails sent during a two-week period, 11 business days seems to be a reasonable response time.

Mr. Durand was correct in noting that Chapter 13 does not contain a provision that grants a government entity more time to respond to a data request because the entity is short staffed. In Advisory Opinion 03-030, the Commissioner stated:

Compliance with Chapter 13 should not depend upon whether or not one specific person is available to respond to a data request. Government entities must enact policies and procedures for managing government data so that they are able to respond properly within the statutory time frames, with the personnel available when they receive a data request.

Opinion:

Signed:

Sheila M. Reger
Commissioner

Dated: August 5, 2009