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 IPA and, except for any data classified as not public, are available for public access.

On September 6, 2000, IPA received a letter dated August 29, 2000, from Douglas Sauter. In his letter, Mr. Sauter asked the Commissioner to issue an opinion regarding Mr. Sauter's access to certain data that School District 284, Wayzata, maintains.

IPA, on behalf of the Commissioner, wrote to Paul Beilfuss, Superintendent of the District, in response to Mr. Sauter's request. The purposes of this letter, dated September 15, 2000, were to inform him of Mr. Sauter's request and to ask him to provide information or support for the District's position. On September 25, 2000, IPA received a response, dated same, from Daniel Becker and Gloria Olsen, attorneys for the District.

A summary of the facts is as follows. On June 14, 2000, Mr. Sauter requested certain data from the District regarding the elementary strings music program (the Commissioner addressed the timeliness of the District's response in Advisory Opinion 00-040). Mr. Sauter asked for the following information:

1. Copies of all parent letters or e-mails referred to by Martha Muffie Tiede at the Wayzata School Board meeting of June 12, 2000 regarding the elementary strings program.
2. Copies of all teacher letters or e-mails referred to by Martha Muffie Tiede at the Wayzata School Board meeting of June 12, 2000 regarding the elementary strings program.
3. Copies of all notes, memorandum, documents or other records used or obtained by the Fine Arts Review Committee upon which said Committee based its claim that Parents, teachers and this committee voiced concerns about the availability of the Suzuki program to all families and its appropriateness in public school setting. (See p. 5 of the report)
4. Copies of all notes, memorandum, documents or other records used or obtained by the Fine Arts Review Committee upon which said Committee based its claim that Several parents reported that they received an instruction sheet (included in this document at the strings orientation this fall that reiterated the requirement of parental involvement in the strings program. (See p. 5 of the report)
5. Copies of all notes, memorandum, documents or other records used or obtained by the Fine Arts Review Committee upon which said Committee based its claim that Parents have also reported that their involvement was impossible because of family and work situations and that they were made to feel guilty about any alternatives. (See p. 5 of the report)
6. Copies of all documents relating to any claims of illegality of the elementary strings program.
7. Copies of all agendas of the Fine Arts Committee Review Committee.
8. Copies of all minutes of the Fine Arts Committee Review Committee.
9. The complete letter which is partially reproduced at p. 40 of the Fine Arts Review Committee Report.
10. The complete letter which is partially reproduced at p. 42 of the Fine Arts Review Committee Report.
11. All correspondence, e-mails, documents and materials provided to the Fine Arts Review Committee by Martha Muffie Tiede in connection to the Elementary Strings Program.

In his letter to the Commissioner, Mr. Sauter asserted that the information the District provided in response to his request was insufficient and/or absent in many respects. Mr. Sauter stated that some documents were missing and that some documents had been redacted. He wrote:

I specifically object to the reaction of these documents. The School District has whited out the names of authors of letters critical of the Program...and yet releases the names of those who support the Program...Clearly the redactions are not because the data is private.

Furthermore, there is no specificality in the District's response to my request or any specific identification of what data is private.

Issue:

Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified by statute or federal law. Pursuant to section 13.03, subdivision 3, if a government entity determines that requested data are classified as not public, the entity is obligated to inform the requestor what statutory section so classifies the data.

Data about students and their parents are classified pursuant to section 13.32 - most student/parent data are private; those data designated as directory information are public (see section 13.32, subdivision 5).

Data about school district employees are classified at section 13.43. Some data about employees are public and some are private.

In his opinion request, Mr. Sauter discussed what information the District had provided in response to the request. Regarding #1, he wrote that the District did not provide any e-mails and that the letters had been redacted so that identifying information about the authors did not exist.

Regarding #2, Mr. Sauter wrote that the District did not include any teacher e-mails or letters.

Regarding #3, Mr. Sauter wrote that the District provided only two documents and that both had been redacted.

Regarding #4, #5, and #6, Mr. Sauter wrote that the District did not provide any documents.

Regarding #7, Mr. Sauter wrote that the District provided agendas for the 3/21/00 and 4/20/00 meetings of the Fine Arts Review Committee, although the Report indicated that the Committee had met seven times during the 1999/2000 school year.

Regarding #8, #9, #10, and #11, Mr. Sauter wrote that the District did not provide any data.

In their response to the Commissioner Mr. Becker and Ms. Olsen wrote:

The School District acknowledges that it omitted statutory references in the August 17, 2000 response to Mr. Sauter's request. When the School District responded in writing to Mr. Sauter, it advised him that Some of the information you requested is classified as private data and is not available to you except pursuant to a court order or the consent of the data subject; e.g., student data or personnel data. Pursuant to Minnesota Statutes, Section 13.03, subdivision 3(e), the School District should have included references to the specific provisions of Minnesota Statutes defining student data and personnel data, Sections 13.32 and 13.43, respectively. By this letter, the District hereby certifies for Mr. Sauter that the bases for denying his access to private student data and personnel data responsive to his request were these provisions of state law, as well as 20 U.S.C. section 1232g, the Federal Family Educational Rights and Privacy Act ( FERPA ), which is the federal counterpart to Minnesota Statutes, Section 13.32, Educational Data.

Mr. Becker and Ms. Olsen asserted that aside from the omission of the specific statutory citations, the District s response to Mr. Sauter's data request was appropriate. They wrote:

The School District made a thorough search of data in existence at the time of the request for responsive documents....[w]hen the School District's Fine Arts Review Committee had oral conversations with parents, community members, and staff regarding the Fine Arts program, and the substance of those conversations were not reduced to writing, there is no government data to be produced and the School District is not required to create such data. Mr. Sauter asked for numerous items that do not exist, such as agendas or minutes from each of the meetings of the School District's Fine Arts Review Committee. Those that exist were provided. Further, numerous comments and items of feedback contained in the Committee Report have no underlying documentation because they were provided to the Committee orally.

Mr. Sauter also objects to the redaction of various documents produced in response to his request. As noted above, the basis for such redactions are [sections 13.32 and 13.43]. The redactions made to the materials were to protect private personnel data and private student data, including information concerning parents of student of the School District. Mr. Sauter questions in his August 29, 2000 letter why the letter of Paul Jon Zdunek was not redacted. Mr. Zdunek is not a student, a parent of a student, or an employee of the School District.

In responding to Mr. Sauter's request, the District was required to provide any public data it maintains. In addition, if the District determined that any of the requested data are classified as not public and could not be released to Mr. Sauter, the District was required, upon Mr. Sauter's request, to provide Mr. Sauter with the statutory citations so classifying the data.

In its response, the District provided some of the data and denied access to some of the data (by redaction). Mr. Sauter provided copies of the redacted documents to the Commissioner. The District asserts it redacted the documents to remove data classified as private pursuant to sections 13.32 and 13.43. Without having inspected the documents prior to redaction, and without having in-depth knowledge of the specific situation and the players, the Commissioner cannot state for certain if the District properly redacted the documents. The Commissioner does acknowledge, that most information about students/parents is private and that much information about District employees is private. The Commissioner also acknowledges that in the context of staff and parents/students stating their opinions regarding a particular program, identifying data are likely to be private and not accessible to Mr. Sauter. However, pursuant to section 13.03, the District should have explained to Mr. Sauter that it redacted the data as prescribed by sections 13.32 and 13.43. Mr. Becker and Ms. Olsen acknowledged the District's omission in their comments to the Commissioner.

Finally, if some of the data Mr. Sauter requested do not exist, as is the District's position as stated by Mr. Becker and Ms. Olsen, the District cannot provide them and is under no obligation to create new data. However, in its August 17, 2000, response, the District should have stated to Mr. Sauter that the remaining data do not exist.

One final note is in order. Pursuant to Minnesota Statutes, section 15.17, all officers and agencies of school districts shall make and preserve all records necessary to a full and accurate knowledge of their official activities. If the Fine Arts Review Committee conducted official activities, it does not seem appropriate that the District does not possess agendas (other than the two that Mr. Sauter obtained) or minutes of any of these meetings.

Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. Sauter raised is as is as follows:

Pursuant to Minnesota Statutes, section 13.03, in its August 17, 2000, response to a June 14, 2000, request, School District 284, Wayzata, was required to provide to the requestor the statutory citations upon which the District denied access to certain data. The District did not do so. It's response was, therefore, inappropriate, in part.

The Commissioner, however, is unable to determine for certain whether the District appropriately redacted certain data pursuant to sections 13.32 and 13.43.

Finally, if some of the requested data do not exist, the District is not required to created new data to respond to the request. However, in its response, the District should have so informed the requestor.

Signed:

David F. Fisher
Commissioner

Dated: October 26, 2000