Facts and Procedural History:

Krista Porvaznik requested an advisory opinion from the Commissioner regarding Independent School District 197’s (District) – West St. Paul-Mendota Heights-Eagan Area Schools – response to a request for data pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Chapter 13). Michael J. Waldspurger, counsel, responded on behalf of the District.

On July 24, 2020, Ms. Porvaznik submitted a data request to the District, which included a request for “the recording of the Public Comments portion of the June 15th School Board Meeting.” After communications between the parties, the District responded to the request by stating that during the public comment session, “some community members began making allegations against district employees” and that “[t]o the extent that the recording of the meeting consists of allegations against any district employee, the recording is classified as private personnel data under Minnesota Statutes section 13.43 and may not be released to the public.”

Issue:

Discussion:

Government data are defined as, “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (Minnesota Statutes, section 13.02, subdivision 7.) Government data are public unless classified by statute, temporary classification, or federal law. (Minnesota Statutes, section 13.03, subdivision 1.)

Government data on individuals maintained because an individual is or was an employee of a government entity are classified by Minnesota Statutes, section 13.43. Section 13.43, subdivision 2, lists the various types of personnel data classified as public and subdivision 4 provides that all other personnel data are private, and therefore not accessible to members of the public.

Further, the Open Meeting Law (OML) requires meetings of public bodies to be open to the public, with limited exceptions. The governing body of a school district is a public body subject to the law. (Minnesota Statutes, 13D.01, subdivision 1(b)(1).) Minnesota Statutes, section 13D.05, subdivision 1(c) states, “data discussed at an open meeting retain the data's original classification; however, a record of the meeting, regardless of form, shall be public.” The OML does not require public bodies to record meetings that are open to the public. Public bodies may determine what record(s) of a meeting they will create, and further, what they will consider the official record of the meeting that they must continue to maintain. (See Minnesota Statutes, section 15.17.)

There are two Minnesota Supreme Court cases that discuss how the purpose for maintaining data and the location where data are maintained impact the classification of the data.

In KSTP TV, the Minnesota Supreme Court discussed the classification of video recordings from Metro Transit buses, and whether the recordings were classified as personnel data. The recordings were originally maintained on the bus hard drives for multiple purposes, including safety-related reasons. However, after an incident, Metro Transit downloaded the recordings from the hard drives onto DVDs to evaluate bus driver conduct. The classification of the video ultimately depended upon whether the recordings was “‘maintained’ by Metro Transit exclusively for a personnel purpose at the time KSTP made its request to access the data.” (KSTP TV v. Metropolitan Council, 884 NW 2d 342, 350 (Minn. 2016).)

In Harlow, the Minnesota Supreme Court analyzed a situation where a single government entity maintained duplicate data in separate locations for separate purposes. (See Harlow v. State Dept. of Human Services, 883 N.W.2d 561 (Minn. 2016).) In its opinion, the Court concluded that personnel data that are public per section 13.43, subdivision 2(a)(5), remain public even though the same data are classified as confidential during an active maltreatment investigation under Minnesota Statutes, section 13.46, subdivision 3. (See Harlow at 568.)

The Minnesota Supreme Court did not address the interaction of Section 13.43 and the OML. However, the Court’s conclusion in Harlow demonstrates how data may be classified as public for one purpose and not public for another when the data are maintained in two separate locations.

In its comments to the Commissioner, the District states, “[t]he video recording of the public comment session contains general allegations against three high school administrators. To the extent that the recording of the meeting contains allegations against any identifiable employee, including a small group of employees, the recording is classified as private personnel data.” The Commissioner disagrees. The classification of the recording depends on the purpose for maintaining the recording, and whether the recording is maintained in more than one location.

Here, although unclear, it appears that the District only maintains one copy of the meeting recording, if that is so, the KSTP TV case is most applicable. The data Ms. Porvaznik requested is a recording of the public comments portion of an open meeting held by the school board. The plain language of the OML is clear, a record of an open meeting, regardless of form, is public. The OML only requires the District to record closed meetings. If the District chooses to record its open meetings and continues to maintain these meeting recordings for this original purpose (as a recording of an open meeting), the recordings of the open meetings are public. As a result, if the District continued to maintain the recording as a record of the open meeting at the time of Ms. Porvaznik’s data request, rather than exclusively for personnel purposes, the recording was still being maintained as a record of the meeting and would be public pursuant to 13D.05, subdivision 1(c).

However, if the District placed the recording in an employee’s “personnel file” or maintained the meeting recording exclusively for personnel purposes at the time of Ms. Porvaznik’s request, then the data maintained about that employee would be personnel data pursuant to Minnesota Statutes, section 13.43.

If the District maintains multiple copies of the meeting recording, Harlow provides additional guidance on the classification of data when maintained in two separate locations for different purposes. If the recording of the meeting exists both as a record of the meeting and in the personnel files or for personnel purposes of the employees discussed at the meeting, the copy of the recording that exists as a record of the meeting would be public pursuant to Minnesota Statutes, section 13D.05, subdivision 1(c).

In its comments, the District asserts that “a record of the meeting” means meeting minutes. The Commissioner disagrees that a record of a meeting is limited to meeting minutes. If the Legislature had intended only meeting minutes to be public, the Legislature could have used the phrase “meeting minutes” instead of “a record of a meeting, regardless of form.” To the extent a public body maintains multiple records of a meeting, section 13D.05, subdivision 1(c), makes them public so long as the records of the meetings continue to be maintained for that purpose.

The comments provided do not definitively indicate why or how the District maintains the recording or whether there are multiple recordings. Therefore, the Commissioner cannot determine whether the District responded appropriately to Ms. Porvaznik’s request.

The Commissioner would like to note that Minnesota Statutes, section 13D.05, subdivision 1(c) only applies to open meetings, where the public will already have access to the discussions that take place at the open meeting. If a recording of a public meeting is not the public body’s official record, it is not required to continue to maintain the recording for that purpose. The classification of recordings of closed meetings are discussed in Advisory Opinion 10-001. 

Opinion:

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

The Commissioner cannot determine whether the District properly responded to Ms. Porvaznik’s data request, as there are questions of fact the Commissioner is unable to resolve.

Signed:

Lenora Madigan  
Deputy Commissioner

January 12, 2021