|Pursuant to Minnesota Statutes, Chapter 13, is Independent School District 832, Mahtomedi, required to respond to multiple requests for data from an individual who is requesting data of which the individual or his/her child is the subject and public data of which neither the individual nor his/her child is the subject?
Pursuant to Minnesota Statutes, Chapter 13, government entities are required to respond to requests for access to data. Section 13.03 regulates requests in situations where the requestor is not the data subject. Section 13.04 regulates requests in situations where the requestor is the data subject or the parent of a minor data subject.
As both Ms. Kepple and X noted, the Commissioner previously issued two advisory opinions in which the Commissioner opined that because of some very unique and specific facts, none of the involved entities were required to respond to a request for all public data about all past and present employees. (See Advisory Opinions 01-031 and 01-034). In both opinions, the Commissioner wrote:
The Commissioner wishes to make clear that the conclusion he reached in this opinion is based on a unique and very specific set of facts. The outcome is in no way intended to suggest that a government entity does not have to respond to a data request merely because responding will be costly or time-consuming.
In the case at hand, Ms. Kepple made several arguments in support of her assertion that X's requests rise to a level of harassment. She stated that many of X's requests were made at a time when X knew the District was on break or the superintendent was on vacation. She also noted that on several occasions, X made requests late on a Friday afternoon. While the District may prefer that data requests come in at other times, Chapter 13 does not provide such restrictions on individuals making requests. In 03-026, the Commissioner stated that if the District shuts down at times other than Saturdays, Sundays, or legal holidays, it needs to have a process in place such that data requests can be received and processed as required by statute. The Commissioner also opined about responding to requests received when the superintendent is on vacation. In both 03-030 and 03-031 he wrote:
...Compliance with Chapter 13 should not depend upon whether or not one specific person is available to respond to a data request. Government entities must enact policies and procedures for managing government data so that they are able to respond properly within the statutory time frames, with the personnel available when they receive a data request.
If the District receives a data request from a data subject on a Friday afternoon, the government entity has ten working days to respond. In other words, the District has not lost two days because the request came in on a Friday. If the request is not from a data subject, the entity must respond in a prompt and appropriate manner, and in a reasonable time. The Commissioner does not agree that a Friday afternoon request would, in any way, hinder the District's ability to respond in a timely manner.
Ms. Kepple also argued that in virtually all the data requests X claimed that charging him/her a fee for copies would impair [X's] 'ability to inspect the data' and 'would cause financial hardship due to the fact that I would need to reschedule numerous medical and therapy appointments for my [child] as well as work and graduate course studies for myself.' Section 13.04, subdivision 5, provides that an entity receiving a request for copies of educational data of a child with a disability may charge a fee that reflects the costs of reproducing the records except when to do so would impair the ability of the child's parent...to exercise their right to inspect and review those records. This language also is located in both FERPA, the federal Family Educational Rights and Privacy Act, and IDEA, the federal Individuals with Disabilities Education Act. X asserts that on 11 occasions X requested free copies based on the special education exception. If the District has questions as to whether it is required to provide free copies, the District is welcome to request an advisory opinion.
Ms. Kepple also asserted, Instead of utilizing accepted discovery methods in the pending United States District Court litigation between these parties...[X] has apparently chosen to utilize the data practices act as a free discovery tool, which places the financial burden solely on the [District] and not on [X], and subjects the [District], but not [X] or [X's] attorney, to the time constraints of the act. No provision in Chapter 13 prevents a person from requesting and gaining access to data just because that person is involved in litigation with the government entity maintaining the requested data. (See Advisory Opinions 96-038 and 97-005.)
Ms. Kepple then provided examples of three data requests that create a theatre of the absurd. Her first example is an elaboration on a data request X made when the superintendent was on vacation. Ms. Kepple wrote:
...[X's data requests] necessitated the school district response be provided by a designee. [X] then objected that a designee responded to the data request and [X] sought an advisory opinion that the designee was inappropriate. Had the designee not responded, [X] would have complained that the response was not timely.
In 03-038, the Commissioner discussed the fact that government entities are required to have written appointment orders for designees. The District did not have any such written orders. The existence of written appointment orders would have helped X understand that X was dealing with an appropriate person in the District.
Another example Ms. Kepple provided is [X's] handling of the Profile of Learning graduation standard transcript entry. She wrote:
[X] has ignored the [District's] repeated invitations to meet with the teacher to discuss the reasons for [X's child's] assessment results, and instead, sent a flurry of correspondence and data requests to the [District], which eventually ended up as a request for an advisory opinion from the [Commissioner] by [X]...
The Advisory Opinion to which Ms. Kepple refers is 03-026; the Commissioner opined that the District did not respond appropriately to X's data request.
Ms. Kepple also noted a situation relating to whether or not the [District] mistakenly stated in correspondence that another student picked up a yearbook for [X's child]. She referred to 03-030. In this opinion, the Commissioner addressed whether the school district responded appropriately to X's requests for data relating to an issue surrounding X's child's yearbook. The Commissioner opined that the District did not respond appropriately.
Ms. Kepple included a final example of what she characterizes as X's harassing pattern of data requests. She wrote,
Finally, [X] has indicated a lack of genuine desire to view or inspect certain documents, since the [District] has made numerous requested documents available for [X's] inspection, and yet, [X] has failed to follow through on some of [X's] requests to review or inspect the requested data, such as the request to review all legal bills. This request alone took several employees several days to prepare, and for what? [X] has a continual supply of data relating to school district legal fees and expenses incurred relating to [X's child]. There is no reason for also obtaining data relating to legal fees and expenses for the past 10 years on any matter, other than, to inflict upon the district the cost and burden of separating public from private data to be found in files, matters as to which [X] otherwise would have no legal right to access. Given [X's] failure to inspect these data, it would appear that [X's] request is harassing.
The Commissioner reviewed the correspondence between the District and X on this matter. On July 25, 2003, X wrote to the District's superintendent and asked to review all District legal bills for the last ten years. On August 6, 2003, the superintendent responded stating that the District would notify X when the records were ready for review. On August 15, 2003, the District wrote again, ...[your request] requires the district to retrieve records from archives, redact any private data and copy the legal bills for your viewing. The actual costs of staff time and copying are anticipated to be approximately $441. On August 21, 2003, X wrote back and argued that inspection is free. The District responded in a letter dated August 29, 2003:
...Your request requires the [District] to make copies, which you are then able to view or inspect, since portions of the data requested contain private data to which you have no right of access. Although you have not been asked to pay for the considerable costs incurred in separating private from public data, you have been asked to reimburse the district for the cost of compiling the data and making copies, necessitated by your request.
The District then stated it would postpone its request for payment pending a Commissioner's advisory opinion. The District also stated the data had been available for X's review since August 15, 2003. In a letter dated October 2, 2003, the District wrote again to X apparently in response to X's letter of September 24, 2003 (the Commissioner apparently does not have a copy of this letter). The District re-asserted its position on the charge and stated it was permissible under section 13.03. The District also clarified that it had not yet requested an advisory opinion:
If and when it does [request an opinion], I will send you a copy of the request. In the meantime, the data is available for your review at [the District's] Office during regular business hours, assuming you are willing to reimburse the District for its costs of $342.61 for compiling the data.
Pursuant to section 13.03, inspection of data is free. Therefore, the District cannot charge X for reviewing the legal invoices. If X requests copies of some of the data s/he inspected, the District may pass on some of the searching for and retrieving costs but may not charge for separating private and public data. Given the circumstances, it is understandable why X has not yet reviewed the legal bills.
Before proceeding, the Commissioner wishes to point out that his authority in this situation is limited to determining whether X's rights to gain access to data would be impeded if the District did not respond to X's requests. At issue is whether X is using Chapter 13 provisions as a tool for harassment. The Commissioner does not, however, have the authority to determine whether X's behavior, in general, is harassing. In a few of the examples that Ms. Kepple cited, it appears she may be objecting more to his/her general behavior, i.e., refusing to meet with a teacher, and the dispute over X's child's yearbook.
The Commissioner acknowledges that during the past several months, X has made numerous data requests to the District. However, that is X's right under Chapter 13. What would not be appropriate, and considered to be harassing, would be a situation where X made requests for data and repeatedly never arranged for a time to inspect them. Another example would be a situation where the District made copies for X and X never picked up the copies or refused to pay an appropriately assessed fee. Ms. Kepple did cite a situation in which the District gathered data and X did not make an appointment to inspect. But, the District apparently was requiring X to pay for the inspection and as the Commissioner noted, such a policy is inappropriate.
Of the examples Ms. Kepple cited, there is only one that possibly might border on using Chapter 13 as a harassment tool. When X requested data and the superintendent was on vacation, a designee responded but the District had not issued a written order appointing this individual as a designee. Upon receiving the data from the designee, X asked for the written order. Upon receiving none, X asked for an advisory opinion. It is possible that X wanted to catch the District in a mistake. That said, however, the Commissioner does not believe the number or type of requests from X, and X's behavior related to those requests, rises to a level such that the District is no longer required to respond to X's requests.
The Commissioner has the following additional comments. It appears that some of the District's data practices issues with X stem from the fact that the District is not complying with certain requirements of Chapter 13 or does not understand the requirements. The Commissioner urges it to take steps to rectify that situation. If IPAD can be of assistance, the Commissioner urges the District to ask for help. For example, it appears that seven of X's requests are very similar in that they ask for copies of any legal bills concerning any of X's family. In a letter dated August 12, 2003, X made a standing request for any such data. In a letter dated August 29, 2003, the District refused, stating it is not obligated to honor standing requests. In Advisory Opinion 96-047, the Commissioner opined that government entities must respond to standing requests.
Finally, given the acrimonious communications between the two parties, the fact that the disputes have occurred over a long period of time, and the amount of money spent on legal fees, the Commissioner urges the parties to attempt to reach some sort of resolution. This suggestion, however, is not meant to excuse the District from improving its compliance with Chapter 13.
Based on the facts and information provided, my opinion on the issue that Ms. Kepple raised is as follows:
|Pursuant to Minnesota Statutes, Chapter 13, Independent School District 832, Mahtomedi, is required to respond to multiple requests for data from an individual who is requesting data of which the individual or his/her child is the subject and public data of which neither the individual nor his/her child is the subject.
Brian J. Lamb
Dated: November 12, 2003