June 5, 1996; School District 696 (Ely)
6/5/1996 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.
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 15, 1996, PIPA received a letter dated April 11, 1996, from Sonja Kerr, on behalf of her client M and M's mother. In her letter, Ms. Kerr requested that the Commissioner issue an opinion regarding M's and M's mother's access to certain data about M maintained by School District #696, Ely, hereinafter District 696. (Attached to Ms. Kerr's letter were copies of correspondence between Ms. Kerr and Charles Long, an attorney representing District 696.) In response to Ms. Kerr's request, PIPA, on behalf of the Commissioner, wrote to Terrence K. Merfeld, Superintendent of District 696. The purposes of this letter, dated April 23, 1996, were to inform Mr. Merfeld of Ms. Kerr's request, to ask him or District 696's attorney to provide information or support for District 696's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On May 4, 1996, PIPA received a response, dated May 3, 1996, from Susan Torgerson and Charles Long, on behalf of District 696. (Attached to the response from Ms. Torgerson and Mr. Long was an April 17, 1996, letter to Ms. Kerr from Ms. Torgerson and Mr. Long, and a document containing educational data about M.) A summary of the facts surrounding this matter is as follows. In her opinion request, Ms. Kerr described her attempts to gain access to phonetic inventories. She wrote, On March 31, 1996, we requested a copy of documents entitled 'phonetic inventories' which are documents/logs to be kept to measure [M's] progress in [therapy]....We suspect that the phonetic inventories may not exist, but we are not sure. Apparently, on March 28, 1996, Ms. Kerr and M's mother, along with various other parties, participated in a conciliation conference. In a letter dated March 31, 1996, Ms. Kerr wrote to Mr. Long to summarize our understanding of what occurred at the conciliation conference on March 28, 1996. In her letter, Ms. Kerr wrote, Parent requested copies of all phonetic inventories completed by Denise Dreschler to date. Then, in a letter dated April 5, 1996, Ms. Kerr wrote again to Mr. Long and stated, We are still awaiting the phonetic charts from the school district, that we requested on March 31, 1996 in writing. The District has violated the MGDPA [Minnesota Government Data Practices Act] by not providing same to use within the five day period. Please forward same, right away. In a letter dated April 9, 1996, Mr. Long wrote to Ms. Kerr and stated, Documents regarding speech therapy are being compiled and will be forwarded. In a letter dated April 11, 1996, Ms. Kerr wrote to Mr. Long and stated, I note that it is now over 10 days from the time that [M's mother], through counsel, made a written request for the phonetic inventory charts and we have not received same.
In response to Ms. Kerr's opinion request, Ms. Torgerson and Mr. Long, in part, wrote:
Ms. Torgerson and Mr. Long further stated that M's parents were informed in a letter dated April 17, 1996, that District 696 does not create the phonetic inventory charts. They also wrote that M's therapist has reviewed her notes and compiled a report of [M's] progress...This report was completed and forwarded to the parent recently.
Issue:
In her request for an opinion, Ms. Kerr asked the Commissioner to address the following issue:
Discussion:
The issue raised by Ms. Kerr is whether District 696 complied, in accordance with the requirements of Minnesota Statutes Section 13.04, subdivision 3, to her request for the documents about M entitled phonetic inventories.
Apparently, M is a student of District 696, which is a public educational institution. Data which relate to a student and are maintained by such an entity are defined as educational data in Section 13.32. Pursuant to Section 13.32, subdivision 3, most educational data are private data on individuals. (There are some exceptions to this general rule, none of which appear to apply in the situation at hand.) Therefore, the data requested by Ms. Kerr are private educational data about M. In general, Section 13.04, subdivision 3, provides that, upon request to a government entity, an individual has the following rights: to be informed whether s/he is the subject of stored data and how those data are classified; to be provided an opportunity to inspect any such data; and to be provided with copies of any such data. Further, any request made pursuant to Section 13.04, subdivision 3, must be complied with immediately, if possible. If immediate compliance is not possible, the government entity must provide the data subject with access to the public and private data it maintains about that individual within five working days (excluding Saturdays, Sundays, and legal holidays) of the date of the request. However, upon notice to the individual, the government entity may have an additional five days (excluding Saturdays, Sundays, and legal holidays) within which to comply with the request. In the present situation, Ms. Kerr requested access to certain data about her client which she believed might be in existence. She apparently received no response from the District regarding her requests until April 17, 1996, at which time Ms. Torgerson and Mr. Long advised Ms. Kerr, in a letter, that the phonetic inventory charts are not maintained by District 696. This April 17, 1996, response was apparently received by Ms. Kerr approximately 11 to 14 working days after her initial requests. In their response to Ms. Kerr's opinion request, Ms. Torgerson and Mr. Long asserted, A school district cannot provide a parent with documents that do not exist. A district is not required to create new information to comply with the Data Practices Act. While this is correct, Ms. Torgerson and Mr. Long did not address the fact that District 696 simply did not respond to Ms. Kerr's requests. If M was/is not the subject of the phonetic inventory charts because those data did/do not exist, District 696 should have so informed Ms. Kerr immediately at the time of her request, or within five or ten working days thereafter (see above.) Given that the District's response apparently did not reach Ms. Kerr until after the five to ten day statutory deadline had expired, District 696 has not complied with the requirements of Chapter 13. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Ms.Kerr is as follows:
Signed:
Elaine S. Hansen
Dated: June 5, 1996
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