Issues:

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

Discussion:

Pursuant to Minnesota Statutes Section 13.04, upon request to a government entity's responsible authority, a person shall gain access to data of which s/he is the subject. If the entity cannot provide access immediately, it may take five working days. If more time is necessary, the requestor is to be so informed and the entity may take an additional five working days. Pursuant to Section 13.03, upon request to a government entity's responsible authority, a person shall gain access to public data of which s/he is not the subject. The entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See Section 13.03, subdivision 2, and Minnesota Rules Section 1205.0300.)

In the case at hand, Mr. Nickitas provided a copy of a request for documentation dated February 11, 1997, that had been prepared by C. This document appears to have been addressed to three people described by Ms. Wilson as District employees and copied to additional people and organizations, including Mr. Myles. In the document, C requested access to various information. While some of the requested data are most likely about C and/or C's children and subject to the requirements of Section 13.04, some of the remaining data may be public data not about C and/or C's children and subject to the requirements of Section 13.03.

Commenting on the first issue, Ms. Wilson wrote, [C's] letter was addressed to District employees. [C's] request was not directed to Mark Myles, Superintendent of the District, and the responsible authority under [Chapter 13]. [C] indicated [s/he] was carbon copying Mr. Myles, but whether Mark Myles ever received a copy of the request dated February 11, 1997 is unknown.

Ms. Wilson is correct that Sections 13.03 and 13.04 require a data requestor to direct requests to the responsible authority of the involved entity. Both sections state, Upon request to a responsible authority [a person shall gain access to government data]... Ms. Wilson is also correct that C's February 11, 1997, letter was not directed to Mr. Myles, the District's responsible authority. However, the documents indicate that C copied the letter to Mr. Myles. Assuming C either mailed or hand-delivered the copy to Mr. Myles, he presumably received it. (Ms. Wilson stated it was not known whether Mr. Myles received his copy.)

Pursuant to Chapter 13, a government entity is required to prepare a document containing the name and address of the responsible authority (see Section 13.05, subdivision 1.) In addition, the entity is required to prepare a document that explains the procedure for gaining access to data. (See Section 13.05, subdivision 8.) Although Ms. Wilson points out that C's letter was not addressed to the responsible authority, it is possible, if the District has not met its obligations under Section 13.05, that C did not know the identity of the responsible authority. C may have believed s/he was sending the correspondence to people who could provide her/him with the data.

Assuming Mr. Myles did receive the February 11, 1997, correspondence, the District had up to ten working days to respond to the any of the requested data of which C and/or C's children are the subject. Given there was no response until on or after September 5, 1997, the District did not provide a timely response as prescribed in Section 13.04.

As to any public data not about C and/or C's children, pursuant to Section 13.03, the District was to respond within a reasonable time. Again, there was no response until on or after September 5, 1997. A response time of approximately seven months is not reasonable and therefore, the District did not provide a timely response as prescribed in Section 13.03.

The second issue revolves around the September 5, 1997, letter from Mr. Nickitas addressed to Mr. Myles. In this letter, Mr. Nickitas wrote:

As a final note, [C] notes that ISD 709 has failed to produce the data [C] requested six months ago of and concerning the [incident regarding C's child] in February, 1997...[C] reasserts [C's] demand for these data, pursuant to [Chapter 13]...

[C] makes a second Data Practices Act request for all data in the possession or control of ISD 709 that details all bus schedules, bus rosters, and other transportation arrangements for [C's] children in the past three academic years - - 1994 - 1995, 1995 - 1996, and 1996 - 1997.

In her comments, Ms. Wilson wrote that Mr. Myles received Mr. Nickitas' request on September 8, 1997. She stated that on September 15, 1997, the District's attorney wrote to Mr. Nickitas to inform him that she was attempting to compile the requested data. Ms. Wilson further wrote that on September 24, 1997, the District sent C the data regarding the bus schedules and that on December 22, 1997, the District provided copies of all existing documents relating to the request of [C]. She added that also on December 22, 1997, the District sent a letter regarding documents that were related to the bus transfer issue.

Ms. Wilson stated that the information C requested included both private and public data. She wrote, Much of the private data were bussing [sic] incidents which included the names of other students. Private educational data about students or their parents cannot be disclosed to other parents or students. Ms. Wilson further wrote:

The District...redacted the documents to insure that private data about other students and parents was not improperly disclosed. The District notified [C] that they were working on compiling the data and they produced the data within a reasonable time given the necessity of redacting a lot of the documents. Other parts of [C's] request were for public data. Bus schedules, bus rosters and transportation arrangements are public data. While students' names are contained in the data, the data is not accessed by the student's names. Again, the District compiled the data as soon as possible and redacted the data to protect the identity of the other students. The bus schedules, bus rosters and transportation arrangements were provided in a reasonable amount of time (within nineteen (19) days of [C's] request).

Because very few of the data in question were provided to the Commissioner, it is impossible for her to determine, with certainty, the classification of those data. However, based on the documentation provided, it appears that most of the data Mr. Nickitas requested, on behalf of C, are data about C and/or C's children. Such data are private pursuant to Section 13.32 (educational data), triggering the response prescribed by Section 13.04 (access to data requested by the data subject). Any other data not about C and/or C's children (that are public), are subject to the time requirements set forth in Section 13.03 and Minnesota Rules Section 1205.0300.

In the case of data about C and C's children, if the District could not respond immediately, it had up to five working days to reply. If the District needed more time, it was to so inform the requestor and could take up to an additional five working days. Ms. Wilson stated the District did not provide any data to C until on or after September 24, 1997, which is two days past the ten day deadline prescribed in Section 13.04. Therefore, the District did not meet the statutory deadline in responding to any part of the September 8, 1997, request that involved data about C and/or C's children.

The requested data that are not about C and/or C's children (and are public), required a response within a reasonable time. Based on the documentation submitted to the Commissioner, it appears the District made any such data available to C/Mr. Nickitas on either September 24 or December 22, 1997. While a reply on September 24 is reasonable, it does not seem that a reply on December 22 (three months from the date of the request) is reasonable. Therefore, the District did not respond within the statutory time frame set forth in Minnesota Rules Section 1205.0300, in regard to any data about C and/or C's children provided on December 22, 1997.

The third issue relates specifically to two letters referred to in C's February 11, 1997, correspondence. The first letter is dated June 19, 1996, and is from the one of the District's attorneys to C's attorney. Ms. Wilson wrote:

The letter was not created, collected or maintained by the District. The letter was written by the District's attorney to [C's] attorney as a result of an inquiry by her on another matter....The District did not have a copy of this letter at the time of her request and a copy was provided to her as a courtesy from this firm's office on April 16, 1998.

Upon examination of the letter (a copy of which the District provided), it appears to contain data about C's child. Therefore, the District should have provided it to C immediately or within five to ten working days of the request.

Ms. Wilson also argued that the District did not possess the letter at the time of the request. This is not a valid reason for restricting access to the data. The letter and its data were created by one of the District's attorneys acting as the District's agent; therefore, regardless of where the letter is housed, it is government data and accessible to the data subject, i.e., C and/or C's child.

The other part of the third issue regards a letter of apology written by the person described by Mr. Nickitas as the assailant. In her comments, Ms. Wilson wrote, The apology note was shown to [C's child] in 1996 and after [C's child ] read the note, it was destroyed. At the time of [C's] Data Practices Request...the note no longer existed. If data do not exist at the time of a request, they cannot be provided to the requestor. It is not clear why the District did not inform C, at the time of his/her request, that the data had been destroyed.

Opinion:

Based on the facts and information provided, my opinion on the issues raised by Mr. Nickitas is as follows:

Signed:

Elaine S. Hansen
Commissioner

Dated: May 15, 1998