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:

On April 5, 2004, IPAD received a letter dated April 2, 2004, from Susan Youngren. In her letter, Ms. Youngren asked the Commissioner to issue an advisory opinion regarding her access to certain data that Independent School District 700, Hermantown, maintains. IPAD staff requested clarification, which Ms. Youngren provided in a letter dated April 8, 2004.

In response to Ms. Youngren's request, IPAD, on behalf of the Commissioner, wrote to Fred Majeski, Superintendent of the District. The purposes of this letter, dated April 16, 2004, were to inform him of Ms. Youngren's request and to ask him to provide information or support for the District's position. On April 27, 2004, IPAD received a response, dated same, from Kevin Rupp and Mark Girouard, attorneys for the District.

A summary of the facts as Ms. Youngren presented them is as follows. In an email dated December 12, 2003, she wrote to the District noting that she had a legal right to request her 1993 time sheets and employment history records for 1993. She stated, "Please inform me when I may pick up these copies and the price." (The Commissioner notes that in this opinion he is addressing only the issue of the time sheets.)

In a letter dated December 23, 2003, Ms. Youngren wrote to Superintendent Majeski. She stated, "I have requested that my 1993 time sheets be pulled, copied and forwarded. Under [Minnesota Statutes, Chapter 13] I have every legal right to these records, and that my request be granted within a timely fashion."

In a letter dated December 30, 2003, Superintendent Majeski wrote to Ms. Youngren. He stated, "In [your December 12, 2003, request], you asked for copies of timesheets...Previously, I provided information to you, indicating that the District has no check history or W-2 documentation."

In a letter dated February 23, 2004, Ms. Youngren wrote to Superintendent Majeski. She stated, "...I have made it very clear that what I am requesting is my time sheets(which are stored separate from wage records) are pulled for my viewing for 1993."

In a letter dated February 27, 2004, Superintendent Majeski wrote, In response to your letter of February 23, 2004, the District payroll clerk has reviewed all time sheet information in the files of the District. We can not find any time sheets to cover the period 1993 that you indicate exist.

Issue:

Discussion:

Pursuant to Minnesota Statutes, section 13.04, when an individual requests access to data of which s/he is the subject, the government entity is required to respond within ten working days. In addition, pursuant to section 13.03, subdivision 2, requests must be complied with in an appropriate manner.

In their comments to the Commissioner, Mr. Rupp and Mr. Girouard stated that in January 2003 the District responded to a similar request by Ms. Youngren. Mr. Rupp and Mr. Girouard provided a copy of a January 30, 2003, request, which states, "...could I receive a print out of my [end-of-year] payroll record for 1993. The District responded: "[We] went to the basement to find the 1993 calendar year records. We found both the check history and W-2's. There was no information for you on the check history. There was also no W-2 for you." Of the District's response, Mr. Rupp and Mr. Girouard wrote:

The District, interpreting the request broadly, searched for any indication, such as check history and W-2's, that the District paid Ms. Youngren in 1993....Because there are no timesheets or comparable data for Ms. Youngren for 1993, the District informed Ms. Youngren - on the same day as her request - that the data do not exist.

The Commissioner takes issue with Mr. Rupp and Mr. Girouard's characterization of the January 2003 request and the District's response. First, it is not clear what specific data Ms. Youngren was seeking when she asked for her end-of-year payroll record. If the District needed clarification, it should have asked Ms. Youngren to clarify her request. If Ms. Youngren wanted access to time sheets, she should have made that explicit in her request. Second, the District's response indicates that it found no information on Ms. Youngren's 1993 "check history" and no W-2. Because the Commissioner cannot deduce that "no information on check history" means there were no time sheets, he suspects Ms. Youngren reached the same conclusion, especially since she later made a specific request for her 1993 time sheets. Thus, because it is not clear whether Ms. Youngren asked for time sheets in January of 2003, the Commissioner finds Mr. Rupp and Mr. Girouard's discussion not applicable to the outcome of this opinion. Furthermore, with the exception of language in section 13.04, subdivision 3, which does not apply here, Chapter 13 does not limit the number of requests a data subject may submit.

Of the District's reply to Ms. Youngren's December 12, 2003, request for her 1993 time sheets, Mr. Rupp and Mr. Girouard wrote, "...[the Superintendent]...went on to explain that, as she had been informed before, there was no check history or W-2 documentation. It is clear from the juxtaposition of these two statements in his letter that he understood 'check history and W-2 documentation' to include timesheets." Ms. Youngren asked for time sheets. For the District's response to be considered appropriate and timely, the District needed, within ten working days, either to allow Ms. Youngren access to her time sheets or to inform her that the data do not exist. The District did not do so in a clear, fully understandable manner.

In her February 23, 2004, letter, Ms. Youngren reiterated her request, "...I have made it very clear that what I am requesting is my time sheets...are pulled for viewing for 1993." The Superintendent replied, "We can not find any time sheets to cover the period 1993 that you indicate exist." This statement is problematic because it is not clear whether the data do or do not exist. In Advisory Opinion 00-051, the Commissioner wrote:

Mr. Willis maintains that the City has been unable to locate the planning files Mr. Cooney requested. It is correct that if the requested data do not exist, the City is not obligated to create data to respond to the request. However, Mr. Willis does not seem to be making a definitive statement that the data do not exist. Rather, he has stated that the City cannot find the information. Pursuant to section 13.03, the City must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. Also pursuant to section 13.03, the City must establish procedures...to insure that requests for government data are received and complied with in an appropriate and prompt manner. If the City maintains the data, pursuant to Chapter 13, it must be able to locate the information so that it can respond to Mr. Cooney in an appropriate and prompt manner, and within a reasonable time. If the City does not possess the data, it should have so informed Mr. Cooney.

Here, as in 00-051, the Superintendent does not seem to be making a definitive statement as to whether the District does or does not maintain the time sheets. If the data do not exist the Superintendent needed to communicate that to Ms. Youngren. He did not.

For purposes of this opinion, Ms. Youngren requested access to her 1993 time sheets in December of 2003. As of the date she requested this opinion, the District had not replied in an appropriate manner and has not met the ten day response requirement in section 13.04.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Ms. Youngren is as follows:

Independent School District 700, Hermantown, did not comply with Minnesota Statutes, Chapter 13, in responding to a data subject's request for a copy of her time sheets.

Signed:

Brian J. Lamb
Commissioner

Dated: June 1, 2004