This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2023). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

On July 3, 2024, Independent School District 11, Anoka-Hennepin (District), requested an advisory opinion from the Commissioner regarding the classification of data contained within written correspondence between school board members under the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13.

The District provided the following summary of facts:

On May 30, 2024, the president of the District’s teacher’s union requested access to all emails exchanged between three individual board members regarding the school budget for the 2024-25 school year and/or emails that included various search terms (e.g. systemic racism, anti-racist, whiteness, etc.). After receiving the request, the District’s General Counsel had separate conversations with the union president and the union’s attorney (Education Minnesota) seeking clarification on the request. During these discussions, the District raised concerns that email correspondence exchanged between individual board members may constitute private data under Minnesota Statute.

The District also provided a copy of the data request for the school board members’ emails.

Issue:

Discussion:

Minnesota Statutes, section 13.01, subdivision 3 establishes that government data are presumptively public “unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.”

Section 13.601, subdivision 2 states, “Correspondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or recipient.”

The Commissioner has addressed section 13.601, subd. 2 in several previous opinions, noting that the private classification applies only when the correspondence is between members of the public and elected officials. (See Advisory Opinions 97-002, 97-014, 98-052, 99-013, and 02-013.)

Additionally, the Commissioner has opined that correspondence between an elected official and an individual who is also an elected official or employee of a government entity cannot be classified as private under section 13.601, subd. 2, unless the individual was acting in a personal capacity as a private resident rather than in an official capacity as an employee. (See Advisory Opinions 98-052, 07-004, and 11-019.)

Lastly, the private classification contained in section 13.601, subd. 2 is limited to correspondence between elected officials and “individuals,” meaning that the classification does not apply when a person is acting on behalf of an organization. (See Advisory Opinions 10-023 and 18-013.)

In its request, the District wrote:

… The Department of Administration … has rejected the notion that a person writing on behalf of an organization, corporation or other “artificial persons” can be considered to be an individual for the purposes of Minn. Stat. 13.601 Subd. 2. It has ultimately opined that, “correspondence between [an elected official] and a party that communicates on behalf of [an organization] is presumptively public.” …

The question in this instance, however, is whether individual school [board] members are in all instances deemed to be communicating on behalf of the school district or whether they can act as individuals when communicating their own personal thoughts about issues affecting the schools. …

… Just as a constituent might express through correspondence their interests and concerns about the school district to an individual school board member and have an expectation of privacy in the communication, it can be presumed that school board members, acting in an individual capacity, can expect that they can have similar communications. To suggest otherwise is to conclude that school board members never have agency to act as individuals and they are always acting as agents of the District when they send or receive correspondence that relates to the school district.

While the Department of Administration has issued decisions that address the scope of communications covered by Minn. Stat. 13.601 Subd. 2, the decisions do not draw a distinction between instances where an elected official is acting in an individual capacity – as compared to a representative compacity. See Advisory Opin. 02-013 (Pipestone-Jasper) and Advisory Opin. 98-052 (Clay County). As a result, these cases are distinguishable. …

The fundamental question in this case is whether a school board member can act as an individual and have an identity separate from the board as [a] whole. We believe that the individual board members can act outside of their representative/elected capacity – even when discussing school district concerns. Important in this analysis is that Minnesota Statute directly acknowledges, “[t]he care, management, and control of independent school districts is vested in a board of directors, to be known as the school board.” Minn. Stat. 123B. 09 (emphasis added). …

… When an elected official is not clothed with the authority to represent the entire board or to act independent in their representative/elected role – they presumptively retain the right to act as an “individual” under Minnesota Statute 13.601. Had the legislature intended to remove from elected officials the capacity to act as an individual it would have expressly stated as much. …

The foregoing analysis supports the conclusion that a school board member can correspond with another school board member as an individual on matters related to the school district and that such correspondence can be maintained as private data under Minn. Stat. 13.601 Subd. 2.

The Commissioner respectfully disagrees.

The Commissioner consistently has opined that the private classification under section 13.601, subd. 2 applies only to correspondence between elected officials and members of the public. This interpretation is supported by the language of the subdivision itself, which distinguishes between “individuals” and “elected officials.” If the Legislature intended to classify correspondence that was only between elected officials as private, the inclusion of “individuals” would be unnecessary. The plain language of subdivision 2 indicates that the correspondence must be between an elected official and someone who is not acting as an elected official in order for the private classification to apply.

Additionally, the District’s argument that the determination of whether section 13.601, subd. 2 applies to specific correspondence should be based on a distinction between a school board member acting as an individual board member rather than on behalf of the entire board is not persuasive. Although school board members may not represent the entire board, individual members still act in an official capacity outside of school board meetings.

Further, past advisory opinions have explained that the appropriate analysis is for an entity to determine whether the elected official or employee sent the correspondence in a personal capacity rather than in an official capacity. In drawing this distinction, the Commissioner noted that the burden is on the elected official or government entity to explain why the content of correspondence was not work-related. (See Advisory Opinion 98-052.)

Here, the local teacher’s union requested emails exchanged between elected school board members that referenced the “2024-2025 budget” or contained specific key words, including “systemic racism,” “anti-racist,” and “whiteness,” among several other terms.

As a result, the private classification under section 13.601, subd. 2 would apply only if board members were communicating in their personal capacities rather than in their official capacities. In its opinion request, the District described the correspondence at issue as “regarding some aspect of school district business” and “related to the school district,” which indicates that the board members were acting in their official capacities rather than in personal capacities when sending the emails. Thus, the District has not met its burden of explaining why the content of the correspondence was not work-related.

The Commissioner recognizes that there may be limited, unique situations when section 13.601, subd. 2 applies because an elected board member wrote to other board members in a personal capacity, but that is not the situation here.

Therefore, the emails and similar written correspondence about school district business sent between school board members cannot be classified as private data under section 13.601, subd. 2. Rather, the data in the emails are presumptively public unless specific data are otherwise classified as not public under the Data Practices Act, other state statute, or federal law.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

Emails and similar written correspondence regarding school district business sent between individual school board members are not classified as private data under Minnesota Statutes, section 13.601, subdivision 2. The data in the emails are presumptively public unless another section in the Data Practices Act, state statute, or federal law would classify the content of the emails as not public.

Signed:

Tamar Gronvall
Commissioner

August 6, 2024