Issue:

In his request for an opinion, Mr. Kerr asked the Commissioner to address the following issue:

Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

In his comments to the Commissioner, Mr. Krafts argued that the individual survey responses are not public for three reasons. First, Mr. Krafts asserted they are private pursuant to section 13.601, subdivision 2, which provides, Correspondence between individuals and elected officials is private data on individuals but may be made public by either the sender or the recipient. Mr. Krafts wrote that comments were directed to elected officials, i.e., Board members. He stated, While individuals were not required to sign their names, they could include names and whatever data they wished, some of which could identify individuals.

The second reason Mr. Kraft offered as to why the data are not public is because parents were informed that individual surveys would be kept confidential. He wrote, Any parents who wish to make their opinions public are, of course, entitled to do so.

The third reason Mr. Kraft put forth is that the School Board declared the survey statistically invalid since many respondents did not follow the instructions to use the pre-addressed, stamped envelopes and many of the forms were photocopies rather than originals. He added, Consequently, the disclosure of individual forms would compromise the integrity of the School District and the individuals who properly responded.

The Commissioner disagrees with the District's position. Section 13.601, subdivision 2, classifies correspondence between individuals and elected officials. In Advisory Opinion 95-013, the Commissioner discussed the fact that the Legislature did not define the term correspondence. The Commissioner wrote:

If the data are government data, then the remaining question is whether they are data classified under Section [13.601, subdivision 2], Elected Officials; Correspondence; Private Data, which states: [c]orrespondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient. The legislature did not define correspondence, therefore guidance on the language used is appropriately sought from a dictionary. (See Minnesota Statutes Section 645.08.) As defined in The American Heritage Dictionary, College Edition, Houghton Mifflin Company, Boston 1985, correspondence is defined as [c]ommunication by the exchange of letters or [t]he letters written or received.

The Commissioner went on to opine that data in a telephone log were not correspondence within the plain meaning on section 13.601, subdivision 2.

Also, in Advisory Opinion 95-041, the Commissioner determined that an investigative report did not constitute correspondence.

In the case of this opinion, the District sent a survey to Zimmerman area parents. In relevant part, the third paragraph of the Overview section states:

In response to input received at a recent parent meeting in Zimmerman, the Elk River Area School District is conducting a survey of Zimmerman area parents about future school options. The purpose of this survey is to provide the school board and administration with information on what parents would prefer. Individual responses to the survey will be kept confidential. Results will only be reported by group.

It is the Commissioner's opinion that the type of correspondence or communication the Legislature envisioned when it enacted the language in section 13.601, subdivision 2, is the kind that is initiated by either the individual or the elected official. Here, the survey is an instrument created by the District designed to provide the District with feedback about two very specific options for restructuring. The first option is to Begin the phase-in of the grades 7-12 program at Zimmerman site when operating funds are available and the second option is to Delay start of 7-12 program at Zimmerman site with grades 9-12 attending Elk River High School, and use the new addition at Zimmerman Junior High School to open another elementary school to alleviate overcrowding at Zimmerman Elementary School. The survey that Mr. Kerr submitted is not a letter he wrote to one of the School Board members about a particular issue. Rather, the District asked him to complete the survey and it was examined, presumably, by all Board members as well as certain District staff alike. Thus, the data in the surveys are not appropriately classified pursuant to section 13.601, subdivision 2.

The City's position is also problematic because 13.601 provides a classification of private data on individuals. The survey appears to be structured in such a way that the data do not identify any individual parent. Therefore, the data could not be private data on individuals as that term is defined in section 13.02, subdivision 5.

Mr. Krafts' other arguments, i.e., that parents were promised confidentiality and that some of the surveys may be statistically invalid, do not affect the classification of the data.

A final note is appropriate. It is important for the District to be aware that if it had been collecting data from parent(s) whose children attend District schools, and the data were about those parent(s), and the data clearly identified the parent(s), then any such data, excluding directory information, would be private. See section 13.32, subdivisions 2 and 5. When this type of data collection occurs, the Tennessen Warning notice requirement kicks in. See section 13.04, subdivision 2.

Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. Kerr is as follows:

Signed:

David F. Fisher
Commissioner

Dated: February 28, 2002