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August 5, 1996; School District 191 (Burnsville)
8/5/1996 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 person who requested this opinion and the response from the government entity with which the person 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 classified as not public, are available for public access.On June 14, 1996, PIPA received a letter requesting this opinion from O, a former employee of School District 191 (Burnsville.) In that letter, O described a release of information about O, by a District staff member, which O believed to be in violation of the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13. O enclosed copies of related correspondence and a local newspaper article. In response to O's request, PIPA, on behalf of the Commissioner, wrote to Mr. James R. Rickabaugh, Superintendent of School District 191. The purposes of this letter, dated June 19, 1996, were to inform Mr. Rickabaugh of O'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, O and Mr. Rickabaugh were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.) On July 10, 1996, PIPA received a response from Anne F. Krisnik, attorney for the District. A summary of the detailed facts of this matter follows. O was a probationary employee of the District, whose contract was not renewed after the 1995-1996 school year. Subsequently, the District received requests for information about that decision from members of the public. According to O, the District responded in two ways to those requests. First, in a letter from Mr. Rickabaugh to a member of the public, Mr. Rickabaugh wrote: . . . state law prohibits my providing the details for nonrenewal of the contract of a probationary teacher. Second, according to the copy of the (undated) article published in the local newspaper provided by O, Burnsville This Week, an assistant principal of the District . . . said [O] failed to meet expectations after being notified last year of [O's] pending ouster. The article also stated that, among other comments, the assistant principal said O had trouble recruiting students and had problems listening to students who would disagree. O stated: I did not give permission for any of this information to be given, and both the superintendent and assistant principal have previously declined to give reasons [for the nonrenewal] to the parents of the students I have worked with. In her response to the Commissioner, Ms. Krisnik stated that in response to numerous requests for information about the District's decision concerning O, [i]n every instance, the District told parents that the District could not provide details regarding the nonrenewal of the employee's contract. Ms. Krisnik disputed the accuracy of the newspaper article, stating that the comment about O's difficulty recruiting students was inaccurately attributed to the assistant principal.
Ms. Krisnik further stated:
Issue:
In requesting this opinion, O asked the Commissioner to address the following issue:
Discussion:
Minnesota Statutes Section 13.43, subdivision 1, provides that personnel data are data on individuals collected because the individual is or was an employee of . . . a state agency, statewide system or political subdivision . . . . Pursuant to subdivisions 2 and 4 of that Section, certain personnel data are public, and all other personnel data are private. (See Section 13.02, subdivisions 12 and 15, for the definitions of private and public government data.)
According to the information provided, O was employed by Burnsville as a probationary employee until this past June, when the District elected not to renew O's contract. Ms. Krisnik did not assert that the District's decision not to renew O's contract was in the nature of disciplinary action. The information provided to the news reporter by the assistant principal are data describing O's performance as a public employee. Employee performance data maintained by the District are classified as private under Section 13.43, subdivision 4. Ms. Krisnik disputes that some, but not all, of the data attributed to the assistant principal were actually disseminated by him. However, according to Ms. Krisnik, the data in question were stored only in the mind of the assistant principal, and therefore, according to Keezer, the data are not government data for purposes of Chapter 13. In Keezer, the court held that in order for data to be government data, and subject to regulation under Chapter 13, the data must be recorded in some physical form, and cannot exist solely in the mind of a government employee. Data which document a public employee's performance are normally maintained by public employers; however, O did not provide documentation which allows the Commissioner to determine that the data exist elsewhere, i.e., among the data on O maintained by the District. Ms. Krisnik asserts that the data disseminated by the assistant principal exist in his mind only, but did not provide information which supports that assertion. Therefore, the Commissioner was not provided sufficient information to determine whether the data existed in physical form at the time they were disseminated. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by O is as follows:
Signed:
Elaine S. Hansen
Dated: August 5, 1996
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Personnel data
Mental impressions (Keezer v. Spickard, 493 N.W.2d 614)
