Facts and Procedural History:

Art Johnston asked for an advisory opinion regarding data that Independent School District 709, Duluth Public Schools (District), maintains. Zachary J. Cronen, attorney for the District, submitted comments on behalf of the District.

Mr. Johnston sent four data requests to the District on March 2, 2018. The District time stamped the requests as “received” on March 7, 2018. On March 20, 2018, the District emailed Mr. Johnston that it had received the requests and that the requests were “currently in the process of being evaluated and we are gathering data.” Mr. Johnston has not received any communication or any data as of the date of requesting this advisory opinion, despite requests for a status update.

Mr. Johnston requested the following:

1. All communications that involved ISD709 property sales, or potential property sales, or other utilization of ISD709 real property. This request includes, but [sic] not limited to, emails, letters, memos, texts, analysis, and meeting noted involving ISD709 administration, agents, employees, attorneys, or school board members; and involving any other persons or entities. Dates requested are from January 2010 to the present. 

2. All communications between administration, employees, elected officials, attorneys, agents, or contractors of Independent School No. 709; and officers, employees, contractors, attorneys, affiliates, or agents of Johnson Controls, Inc., concerning the change orders entered into between I.S.D. No. 709 and Johnson Controls, Inc. dated on or about January 2012 (also known as Amendment Project Scopes – Change Order 2) and November 2009 (also known as Amended Project Scopes).

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Dates are from 2009 to the present.

3. All communications involving administration, employees, elected officials, attorneys, or agents of the Independent School No. 709; concerning responses to data requests and the Minnesota Government Data requests. 

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Dates are from 2013 to the present.

4. All communications involving administration, employees, elected officials, attorneys, or agents of Independent School No. 709; concerning former school board member Art Johnston.

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Dates are from 2009 to the present. 

Issues:

Discussion:

Issue 1: Did Independent School District 709, Duluth Public Schools, respond appropriately to March 2, 2018, data requests for public data related to District communications about property transactions, responses to data practices requests, and a contract change order?

A government entity must respond to requests for public data from members of the public in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) An entity must respond by providing the data, notifying the requester that the data are classified such that the requester cannot have access, or informing the requester that the data do not exist.

In previous advisory opinions, the Commissioner has stated that a prompt, reasonable response is relative to the volume of data requested. (See Advisory Opinions  98-040, 02-020, 04-027, 05-015.) In Advisory Opinion 14-003, the Commissioner opined that the University of Minnesota had responded appropriately to a data requester, even though the University had not provided any data to the requester after a period of five months. In that opinion, the requester had asked for access to data related to numerous studies conducted by the University. The University acknowledged his request on the same day he sent it. A month later, the University provided him with an estimate of copy charges and a recap of his remaining data requests. Two weeks later, the University provided the requester with a list of responsive studies (83 studies) so he could determine the order in which he wanted to review them. The Commissioner wrote:

Based on the complexity of the request and the fact that the University has been in continual communication with Mr. Elliot, it is the Commissioner's opinion that the University has acted appropriately in responding to Mr. Elliott's October 20, 2013, request. It seems reasonable that the request might warrant the time that has elapsed, especially in the context of Mr. Elliott's various other requests.

Here, in response to the Commissioner, the District wrote:

The District notes that for a large portion of Mr. Johnston's data requests, there are no data responsive to his requests. According to the District's Record Retention Policy, correspondence, including emails, have a retention period of three years. See Independent School District 709 Records Retention, at ADM 00900, ADM 02000, available at http://www.isd709.org/district/ departments-3/business­services/finance/record-retention. All of Mr. Johnston's data requests are for communications and all are for a time period beginning more than three years from his requests, including two requests for communications that are over nine years old. Because communications more than three years old are not retained under the Record Retention Policy, there are no data responsive to those portions of Mr. Johnston's requests. Even with those limitations, there are still over 26,000 documents responsive to Mr. Johnston's requests that the District must review.

The District's Chief Financial Officer ("CFO") is responsible for receiving data requests and coordinating the responses to data requests. Here, on March 20, 2018, Jackie Dolentz, the Executive Assistant to the District's former CFO, Doug Hasler, responded to Mr. Johnston acknowledging receipt of the requests. The District thereafter did not respond to Mr. Johnston in writing.

The District has taken steps to ensure that moving forward, all data requests are properly received, acknowledged, and responded to in a timely manner and in accordance with the Minnesota Government Data Practices Act. The District is currently working on reviewing, redacting as necessary, and responding to Mr. Johnston's data requests. The District estimates that it wil1 take 1,300 staff hours to respond to this request. The District will allow Mr. Johnston regular opportunities to review the documents that have been processed as they become available.

In these specific circumstances, once the District determined that certain responsive data no longer existed, it should have notified Mr. Johnston promptly. (See Advisory Opinion 06-014.) Also, it appears that the District has identified responsive documents and has decided to provide Mr. Johnston with data on a “rolling” basis. This can be an effective strategy for both entities and requesters when dealing with a large amount of data. However, despite requests for status updates and the passage of nearly five months, the District has not provided Mr. Johnston with any responsive data nor communicated to him that data on at least one of his requests would be forthcoming. Given the lengthy response time in this specific situation, the District’s lack of response is unreasonable because it failed to communicate the reasons detailing the delay.

The Commissioner understands that requests that result in a large amount of data can present practical challenges for government entities. While entities may be able to identify responsive documents fairly quickly, the time to review and protect not public information can result in lengthy response times. However, entities are still required to respond in a prompt and appropriate manner. Entities can facilitate a timely response by staying in communication with data requesters while their requests are pending. It also allows the requesters to consider whether they would like to change their requests in order to reduce the amount of responsive data; this benefits both the entity and the requester.

The Commissioner acknowledges and is encouraged by the fact that the District is making more of an effort to improve its compliance with the Data Practices Act.

Issue 2: Did Independent School District 709, Duluth Public Schools, respond appropriately to a March 2, 2018, data request from a data subject pursuant to Minnesota Statutes, section 13.04?

When a data subject requests access to government data about him/herself, the Data Practices Act sets a strict time limit for the entity to provide access.

The responsible authority or designee shall comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible. (Minnesota Statutes, section 13.04, subdivision 3.)

The Commissioner has issued a number of opinions about the requirement to respond to data subjects immediately or within ten business days. (See Advisory Opinions 03-026, 04-070, and 14-006.)  In Advisory Opinion 18-005, he wrote, "the County’s obligation under the Data Practices Act to comply immediately or in ten business day with a data subject’s request is clear."

The District received Mr. Johnston’s request for communication about him on March 7, 2018, but has not provided Mr. Johnston with any requested data about himself. Therefore, the District did not respond appropriately. 

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:

1. Independent School District 709, Duluth Public Schools, has not responded appropriately to several requests for public data because it has not notified the data requester that certain responsive data do not exist, provided any data to the requester on at least one of the requests, or provided information to explain the delay in responding to the requests.
2. Independent School District 709, Duluth Public Schools, did not respond appropriately to a March 2, 2018, data request from a data subject pursuant to Minnesota Statutes, section 13.04, because it did not provide any data to the requester in 10 business days.

Signed:

Matthew Massman
Commissioner

Dated: July 30, 2018