Discussion:

Issue 1:

According to Ms. Torgerson's September 1, 1993, letter to Ms. Kerr, District 281 did not receive Ms. Kerr's initial request for copies of X's school records until August 30, 1993. Ms. Kerr's letter is dated August 25, 1993, and carries the notation By Overnight/Express Mail . Ms. Torgerson did provide a copy of Ms. Kerr's letter that carries a date received stamp of August 30, 1993. It is not clear from the information provided as to how this discrepancy of timing may have occurred. For purposes of the balance of this opinion, it will be accepted that District 281 received the request on August 30, 1993.

The nature of Ms. Kerr's initial request must be examined to determine what provisions of the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter MGDPA were implicated. Ms. Kerr's letter dated August 25, 1993 states that she is representing X's parents, that she requests that she be sent . . . all of X's school records, including any written information concerning a sexual harassment complaint in which X was the victim. She prefaces her request by stating that she is enclosing a release of information form. This release, signed by X's mother, does authorize District 281 to disclose to Ms. Kerr information about X including: Any and all reports, evaluations, letters, school records of any kind.

There is no disagreement that X was a student at District 281 and that the District collected, created and maintained data about her and may still be doing so. To the extent that this data relates to X as a student at District 281, it is educational data and it is, except for directory information that is not at issue here, classified as private data by Minnesota Statutes Section 13.32, subdivision 3. The request as stated is not a request for public data under Minnesota Statutes Section 13.03. The nature of the actual request made by Ms. Kerr presents an additional question that should be addressed.

Minnesota Statutes Section 13.04, subdivision 3 deals with requests by data subjects to exercise certain rights, including data access, established by the subdivision. Ms. Kerr's request is not stated as a request by X's parents to gain access to data about their daughter as is their right as her parents. Ms. Kerr makes a request to have data released to her pursuant to a release of information authorized by X's parents. The case could be made that Ms. Kerr's request is actually not a request made pursuant to Section 13.04 subdivision 3 but an authorization for data release under Minnesota Statutes Section 13.05, subdivision 4 and Minnesota Agency Rules Sections 1205.0400 and 1205.0500. The District did not raise that argument and it appears from the correspondence between Ms. Torgerson and Ms. Kerr that the District and its attorney considered this to be a request under Section 13.04, subdivision 3. In her September 9, 1993 letter to Ms. Kerr, Ms. Torgerson states that in ...accordance with your request for information and Minn. Stat. section 13.04, subd. 3, we will be in further contact with you soon regarding your access to that data.

When a request for receipt of copies of private data is made within the provisions of Section 13.04, subdivision 3, the MGDPA imposes certain obligations on the government entity to assure that the rights established by the provision are actualized. The government entity is required to provide the copies requested immediately. If immediate compliance is not possible, the entity is required to provide the copies within five working days. If the entity cannot comply within the first five working days, and it informs the individual of its inability to comply, the entity gains an additional five working days within which to comply. In summary, once it receives a request to provide copies of private data, the entity is required by Section 13.04, subdivision 3 of the MGDPA to provide the copies within five days.

In this instance, accepting the District's position as correct, Ms. Kerr's request was received on August 30, 1993. The initial installment of copies was provided to Ms. Kerr by delivery of copies of 471 pages to her on September 15, 1993. (There is an indication in Ms. Torgerson's September 14, 1993, letter that delivery was attempted on September 14, 1993, but the notation from Ms. Kerr as to when the copies were received indicates an actual receipt on September 15, 1993.) In other words, 11 working days transpired between the receipt of Ms. Kerr's request and her receipt of the initial installment of copies. At no time in the initial five day period, did District 281 or its attorney indicate to Ms. Kerr that the copies could not be provided. In order to gain the additional five days within which to comply, the District was required to inform Ms. Kerr of its inability to comply within the first five days. For some reason, it chose not to do so.

Ms. Torgerson's essential arguments on this timing issue is that the District responded as promptly as possible. She suggests there were a variety of mitigating factors that contributed to delays in the District's response. However, these mitigating factors were not communicated to Ms. Kerr within five days of her initial request. By not doing so, District 281 deprived itself of its ability, under Section 13.04, subdivision 3, to gain an additional five days to comply. The MGDPA requires compliance with a request for copies, and other requests made under Section 13.04 subdivision 3, within five to ten days. This has been a requirement of the MGDPA since 1977. (See Minnesota Session Laws 1977, Chapter 375.) In addition to the clear statement of this requirement in Section 13.04, the MGDPA and its implementing rules also require District 281 to prepare and follow written procedures to assure and assist compliance with Section 13.04, subdivision 3. (See Minnesota Statutes Section 13.05, subdivision 8 and Minnesota Agency Rules Section 1205.0400.)

Once the District received Ms. Kerr's initial request, it knew or should have known that to be able to comply within five days it would have to assemble the data from various locations within the District, have the materials reviewed by its attorney and arrange for the delivery of the copies no later than September 7, 1993. The District did not do so. As an alternative, the District could have informed Ms. Kerr between August 30, 1993 and September 7, 1993 that it was not able to comply before September 7 and needed until September 14. The District did not do so.

Given the broad nature of Ms. Kerr's initial request, i.e. all of X's school records, there may also be timing problems with the copies of additional information that District 281's attorney provided to Ms. Kerr after September 15, 1993. Ms. Kerr states that she received 547 copies of documents on or about September 23, 1993. It is not clear from her description of these items if they included additional school records on X. If they did, those records would have been received 17 working days after her request. In her September 20, 1993 letter to Ms. Kerr, Ms. Torgerson indicates she is sending copies of tuition documents about X by fax. If sent on September 20, these copies would have been received by Ms. Kerr 14 working days after her request. Lastly, in a November 5, 1993, letter to Ms. Kerr, Ms. Torgerson indicates that she is sending copies of X's report cards. Clearly, report cards would be part of X's schools records and should have been provided no later than September 7, 1993.

Within Ms. Kerr's statement of alleged violations of the MGDPA by the District, she also asserts that District 281 violated X's parents' rights by not providing them with a copy of the access procedures required to be prepared by District 281 pursuant to Minnesota Statutes Section 13.05, subdivision 8. In the information provided by Ms. Kerr, there is nothing to indicate that X's parents requested a copy of the District 281 procedures. In her November 19, 1993, letter to PIPA, Ms. Torgerson states that District 281 has published the access procedures required by the cited section. She did not provide a copy of those procedures.

Lastly, as part of her statement of Issue 1, Ms. Kerr questions whether District 281 has violated the provisions of the MGDPA because it has failed to provide to X's parents a letter written by, in Ms. Kerr's words, its own Superintendent, to the Minnesota Department of Education. The letter in question, dated January 21, 1993, is actually from Dr. Gwen Martinson, Director of Special Education for District 281, and is directed to Mr. Rick Van Sant, a complaint investigator for the Minnesota Department of Education. In this letter, Dr. Martinson mentions an order given to District 281 that was part of finding from a complaint made by X's mother on behalf of X. The letter discusses actions taken by the District to correct the problems identified in the findings and includes a directive sent to a variety of personnel within District 281 to begin implementation of the corrective action. Ms. Kerr argues that this letter was part of X's school records, was never received from District 281 but was obtained from the state Department of Education.

In her November 19, 1993, letter to PIPA, Ms. Torgerson states that this letter was not educational data but it is civil investigative data under Minnesota Statutes Section 13.39. She also states that there is additional data being maintained about X that District 281 also considers to be civil investigative data. The status of the January 21, 1993 letter will be considered as part of Issue #2, below.

Issue 2:

In her September 22, 1993, letter to Ms. Torgerson, Ms. Kerr specifically mentions that she and X's parents did not receive, as part of the materials provided by District 281 on September 15, 1993, what she describes as the sexual abuse/harassment survey allegedly completed by X at the direction of a District 281 official. Ms. Kerr then states that an additional Chapter 13 claim will be filed if that survey and the tuition documents are not provided. The only response that District 281 seems to have made to Ms. Kerr about this survey is found in Ms. Torgerson's letter to Ms. Kerr, dated November 5, 1993. This response says that if X completed such a survey, it is no longer being retained by the District. Although Ms. Torgerson's statement may raise questions about District 281's records management practices, the simple fact remains that if the survey were destroyed by District 281, there is no data in existence that is capable of being accessed under Minnesota Statutes Section 13.04.

There seems to be some confusion in the correspondence between Ms. Kerr and Ms. Torgerson about whether or not Ms. Kerr was also requesting a copy of a statement X may have made about alleged sexual harassment or whether such a document, if it exists, is also being referred to in their correspondence as the sex survey previously discussed. Ms. Torgerson discussed the possible existence of X's statement in her November 5, 1993 letter to Ms. Kerr. She seems to suggest that if such a statement exists, and she asks Ms. Kerr to provide more information, it may involve other students, employees of District 281 or may be confidential civil investigative data under Minnesota Statutes Section 13.39. In any of those instance, Ms. Torgerson concludes that any such statement would not be available to X's parents. Ms. Kerr's request for opinion letter states that District 281 still has not provided the statement to her.

One of the more difficult questions presented by MGDPA involves the question of the status of a statement given by a data subject that includes private data that identifies and says things about other individuals. The difficult question presented to agencies occurs when either the individual who gave the statement or one of the other individuals identified in the statement comes and asks for a copy of the statement. Ms. Torgerson's November 5, 1993, letter suggests that this may be the problem if a statement made by X exists. Although it is understandable for an entity subject to the MGDPA to be concerned with this issue, it is also critical that the MGDPA be applied and interpreted with common, as well as legal sense.

In a situation like this, any statement that exists has been made by the individual who has either been asked to or has volunteered to make the statement. This individual is, in essence, the author of its entire content. Although the individual may not, with the passage of time, be able to recreate the entire content of a previous statement they made, the individual will, in most instances, be able to recall they made the statement and even recall some of the things they said. For data created by a data subject to be treated as data not about him or her seems to offend the very idea behind the provisions of the MGDPA that try to maximize access by data subjects to data maintained about them by government agencies. A reasonable result that will provide access by data subjects to statements they have made can be obtained by interpreting that these statements are data about the individual making the statement because the various details of the statement are either directly about the individual or are his or her statements of opinion about events and other individuals. Except for the lingering question of whether this statement, if it exists, is civil investigative data, this analysis should lead to a result whereby X's parents and their attorney should be provided with access to the statement if it exists.

Ms. Kerr maintains that District 281 should have provided X's parents with a copy of the January 21, 1993, letter from Dr. Martinson to the investigator in the Department of Education. Ms. Torgerson, in her November 19, 1993 letter, takes the position that this letter was not educational data but was civil investigative data. The letter includes identifying information about X and talks about certain actions relative to her educational program that were taken in her school of attendance. Except for an argument that this is civil investigative data, it seems clear that this data is data maintained by a school district that relates to a student and would therefore be educational data that should be provided to X's parents within the time frames required by the MGDPA.

A number of reasons make it difficult to agree with District 281's argument that the data in the January 21, 1993, letter is properly classified as confidential civil investigative data. The content of the letter makes it clear that the District agrees with a finding of the Department of Education about a complaint made by X's parents and is taking corrective action. Those actions involve X and would be visible to her and her parents. In submitting this letter to the Department of Education, District 281 knew or should have known that the Department would be either treating the letter as educational data on X in its possession or as part of its closed investigative file that would also be accessible by X's parents. Nowhere in the letter does the writer seek to have the letter treated as being confidential to X's parents. In addition, copies of the letter are distributed to a number of people, including X's principal at her middle school and none of them are asked to treat the letter as confidential. That pattern of inaction about protecting this data as confidential leads to a reasonable conclusion that it should be treated as educational data and accessible by X's parents.

The only question remaining involves the status of any investigative data District 281 may be retaining about X's allegations of sexual harassment. To the extent that this kind of data is solely about other students, it is appropriate for District 281 to deny X's parents access to the data (see Minnesota Statutes Section 13.32). To the extent that this kind of data identifies employees of the District, where no disciplinary action has been taken, it is appropriate to deny X's parents access to the data (see Minnesota Statutes section 13.43). However, there may be situations, where the only data involved in a given set of investigative data is just about X herself or her parents. Can that kind of data be treated as confidential civil investigative data and, if so does this situation present other MGDPA compliance problems?

Beginning with her initial request, Ms. Kerr was quite persistent in requesting and reiterating her requests that she be provided with any written information concerning a sexual harassment complaint involving X. In her September 20, 1993 letter, Ms. Torgerson states clearly that all documentation possessed by District 281 about sexual harassment issues involving X has been delivered to Ms. Kerr. However, in her November 19, 1993, letter to PIPA, Ms. Torgerson indicates that there is investigative data about X's complaints that is neither public nor private but is confidential investigative data pursuant to Minnesota Statutes Section 13.39.

In enacting Minnesota Statutes Section 13.04, subdivision 3, the legislature, in addition to providing rights for data subjects concerning access to data, also sought to address the problem of secret files being maintained on individuals in situations where the individuals might not even know that a file was being maintained and actions being taken based on that file. The legislature addressed that problem by providing that, upon the request of a data subject, s/he must be informed if they are the subject of stored data and whether that data are classified as public, private or confidential. In light of Ms. Kerr's persistent requests to gain access to investigative data about her client, District 281, instead of telling her that all data about X's claims had been provided, should have informed Ms. Kerr that data was in fact being maintained about her client and that the data, in the District's view, was classified as confidential. By doing so, the District could have avoided what appears to be a misleading statement, i.e. all documentation has been delivered, while at the same time complying with the provisions of Minnesota Statutes Section 13.04, subdivision 3.

The additional question remains as to whether or not District 281 can deny X's parents access to its investigative files by reliance on Minnesota Statutes Section 13.39. Consideration of the District's position leads us to another of the more difficult issues presented by the MGDPA. The District's position is that there is still an active investigation involving X's claim. However, what Section 13.39 actually requires is that the chief attorney acting for District 281 to determine that there is a pending legal action involving X's parents. Ms. Torgerson appears to have made that determination. The data being maintained by District 281 is, however, still data that relates to X in her capacity as a student or former student and therefore is, arguably, private educational data. This is the position argued by Ms. Kerr in her attempts to get access to all of the data concerning the handling of X's sexual harassment complaints. The basic operational logic of the MGDPA, particularly in the variety of specific statutory provisions that define and then classify various types of data, can often lead to situations in which the exact same data can be classified as private by one section of the MGDPA and as confidential by another section. This is the result that is at issue as X's parents and their attorney attempt to get all of the data being maintained by District 281 about X.

Two provisions of law, one state and one federal seem to indicate that X's parents ought to be able to get access to the data that the District maintains is confidential investigative data. First, the legislature, within the MGDPA, has attempted to deal with the situation where different sections of the Act yield private and confidential classifications for the same data. Minnesota Statutes Section 13.03, subdivision 4 provides the following: If data on individuals is classified as both private and confidential by this chapter, or any other statute or federal law, the data is private. This language indicates that it is the legislature's position that if this data is both private educational data and confidential civil investigative data, it ought to be treated as private educational data and be made available to X's parents.

Second, virtually all of the information collected and maintained by District 281 about X directly relates to her and is maintained by District 281 or by parties acting for the District. This qualifies this information for treatment as an education record under the provisions of the Family Educational Rights and Privacy of 1974 (FERPA), 20 U.S.C. 1232g and the rules promulgated thereunder. Although FERPA describes a variety of types of information or records that may be maintained by a school district about students that are not educational records , FERPA and its rules do not contain any provision that would allow a school district to treat its investigative files concerning an investigation about sexual harassment involving one of its student as something other than an educational record. FERPA and its rules clearly provide that education records must be made available to parents. (See 20 U.S.C. 1232g and 34 C.F.R. Sections 99.10 and 99.12.)

It should be clarified that, in the information provided to the Commissioner, it does not appear that when X's parents or Ms. Kerr asked District 281 for access to the investigative files that they ever stated in their request that the access was sought to educational records as that term is defined in FERPA and its rules. Dealing with X's parents' requests as a request under federal law could allow the District to deny all or part of the request if the information sought is not an educational record on X. However, District 281 would not be able to avail itself of the civil investigative data argument because federal law does not contemplate that kind of exception.

Opinion: