Advisory Opinion 04-022

Facts and Procedural History:

On February 12, 2004, IPAD received a letter from James Rodenhiser. In his letter, Mr. Rodenhiser asked the Commissioner to issue an advisory opinion regarding his access to certain data that Independent School District 272, Eden Prairie Schools, maintains.

In response to Mr. Rodenhiser's request, IPAD, on behalf of the Commissioner, wrote to Melissa Krull, Superintendent of the District. The purposes of this letter, dated February 23, 2004, were to inform her of Mr. Rodenhiser's request and to ask her to provide information or support for the District's position. On March 17, 2004, IPAD received a response, dated March 15, 2004, from Maggie Wallner and Kimberly Hewitt Boyd, attorneys representing the District.

A summary of the facts as presented by Mr. Rodenhiser is as follows. In a letter dated October 6, 2003, Mr. Rodenhiser requested the following data from the Mary Bollinger, Executive Director of Human Resources, A copy of all Data Practices policies utilized by the [District].

Ms. Bollinger responded in a letter dated October 13, 2003, and included a copy of the [District's] data practices policy.

In a letter dated November 18, 2003, Ms. Bollinger wrote again to Mr. Rodenhiser stating, in part, The district's Data Practices Policy was sent to you on October 13, 1003 [the Commissioner assumes this should be 2003]. We have enclosed another copy with this letter.

In a letter dated November 28, 2003, Mr. Rodenhiser wrote to the Ms. Bollinger. He stated:

I have included with this letter a copy of a Compliance Checklist containing 20 rows of topics related to [Chapter 13] responsibilities for which an entity is required to establish various written policies and procedures. For each of the 20 topics I am requesting that you provide to me all data which defines the district's policies and procedures related to that topic. Please designate for which topic(s) there is no data existent.

In a letter dated December 8, 2003, Ms. Bollinger wrote to Mr. Rodenhiser:

I am enclosing a copy of Policy 505 and also regulations 505.1 and 505.2 which cover all information regarding student records. In addition, we are enclosing Policy 801 and Regulation 801.2, which deals with community access to student directory information. Regulation 801.2R was put into effect at our June 28, 2000 school board meeting....

In a letter dated December 17, 2003, Mr. Rodenhiser asked to inspect the resolution by which the current responsible authority was formally appointed.

In his opinion request, Mr. Rodenhiser wrote that the requests in this letter have to date not been responded to.

Issues:

In his request for an opinion, Mr. Rodenhiser asked the Commissioner to address the following issues:

Has Independent School District 272, Eden Prairie, complied with Minnesota Statutes, Chapter 13, in its determination regarding an October 6, 2003, request for a copy of all Data Practices policies utilized by the District? Has Independent School District 272, Eden Prairie, complied with Minnesota Statutes, Chapter 13, in its determination regarding a November 28, 2003, request for all data which define the District's policies and procedures related to each of 20 topics? Has Independent School District 272, Eden Prairie, complied with Minnesota Statutes, Chapter 13, in its determination regarding a December 17, 2003, request for access to data?

---

Discussion:

Issue 1:

Has Independent School District 272, Eden Prairie, complied with Minnesota Statutes, Chapter 13, in its determination regarding an October 6, 2003, request for a copy of all Data Practices policies utilized by the District?

Before proceeding, the Commissioner notes he is limiting his discussion in this issue to the timeliness of the District's response.

When an individual requests data of which s/he is not the subject, a government entity must respond in an appropriate and prompt manner (see Minnesota Statutes, section 13.03, subdivision 2(a)) and within a reasonable time (see Minnesota Rules, section 1205.0300).

In an October 6, 2003, letter, Mr. Rodenhiser requested copies of all data practices policies utilized by the District. On or about October 13, 2003, the District sent him a policy relating to student records (505.1R). On or about December 8, 2003, after a related request by Mr. Rodenhiser (see Issue 2), the District sent the following documents to Mr. Rodenhiser: Policy 505; what appears to be a more complete copy of a policy relating to student records (505.1R); another policy relating to student records - Reporting to Parent(s)/Guardian(s) (505.2R); a policy relating to community access to student directory information (801.2R); and a communications policy (801).

In their comments, Ms. Wallner and Ms. Hewitt Boyd wrote:

...Ms. Bollinger responded on December 8, 2003 and provided Mr. Rodenhiser with all relevant district policies related to student records. The school district has one additional policy related to personnel data that it believes was sent to Mr. Rodenhiser in response to a telephone call to Ms. Bollinger's office.

Mr. Rodenhiser's request on October 6, 2003, was for copies of all data practices policies. The District sent him one policy within two weeks, sent additional policies on December 8, 2003, and apparently sent him an additional policy sometime after December 8, 2003. In the Commissioner's opinion, the District's response was not timely.

Issue 2:

Has Independent School District 272, Eden Prairie, complied with Minnesota Statutes, Chapter 13, in its determination regarding a November 28, 2003, request for all data which define the District's policies and procedures related to each of 20 topics?

In a letter dated November 28, 2003, Mr. Rodenhiser provided the District with a document that lists government entities' obligations under Chapter 13 and its accompanying rules, Minnesota Rules, Chapter 1205. (This list is an information piece prepared by IPAD.) Mr. Rodenhiser's request was for all data which defines the district's policies and procedures related to [each of the 20 topics]. Mr. Rodenhiser seems to be under the impression that for each obligation listed, an entity is required to create a related policy/procedure. The only situation in which an entity is obligated to create a policy/procedure is when the statute or rules so require.

In response to Mr. Rodenhiser's request, Ms. Bollinger sent him copies of several District policies (see Issue 1).

In their response, Ms. Wallner and Ms. Hewitt Boyd wrote:

The school district is required to establish public access procedures in written form on an annual basis. Minn. Stat. section 13.03, subd. 2 and Minn. R. 1205.1200. The school district's policies regarding access to student data...[were provided by Ms. Bollinger] to Mr. Rodenhiser on October 13, 2003 and on December 8, 2003....[t]he school district is not required to maintain a separate policy according to every provision of the Act in the Compliance Checklist submitted to you by Mr. Rodenhiser. Ms. Bollinger has sent Mr. Rodenhiser copies of all the District policies related to data privacy.

Ms. Wallner and Ms. Hewitt Boyd assert that the District has provided to Mr. Rodenhiser all data responsive to his request. In his opinion request, Mr. Rodenhiser appears to assert that he believes the District has not provided him with all of its data practices policies. This is a factual dispute the Commissioner cannot resolve. If the District has provided all of its data practices policies to Mr. Rodenhiser, it has complied with his request. If there are additional data practices policies that the District has not provided to Mr. Rodenhiser, it should do so promptly.

Issue 3:

Has Independent School District 272, Eden Prairie, complied with Minnesota Statutes, Chapter 13, in its determination regarding a December 17, 2003, request for access to data?

In a December 17, 2003, letter Mr. Rodenhiser asked to inspect the resolution by which the current responsible authority was formally appointed. In his opinion request to the Commissioner, he wrote that the District had not yet responded to his request.

In their response, Ms. Wallner and Ms. Hewitt Boyd did not address the issue of a written order or resolution documenting the District's appointment of a responsible authority and Mr. Rodenhiser's ability to inspect it.

Pursuant to Minnesota Statutes, section 13.02, subdivision 16, the responsible authority is the individual designated by the governing body of that political subdivision as the individual responsible for the collection, use, and dissemination of any set of data on individuals, government data, or summary data...

Pursuant to Minnesota Rules, section 1205.0200, subpart 14, when the government entity in question is a school district, the school board shall appoint, as responsible authority, an individual who is an employee of the school district.

In a previous opinion, the Commissioner discussed the requirement that cities appoint a responsible authority. As cities and school districts both are governed by a public body, the discussion regarding a city's appointment process is applicable here.

In Advisory Opinion 94-021, the Commissioner wrote:

In the case of a city, the actual designation of the responsible authority takes place when a city council, by resolution, appoints the responsible authority for the city. (Minnesota Statutes Section 13.02, subdivision 16.)...

Rules promulgated by the Department of Administration in 1981 were, among other things, intended to assist government entities in complying with the responsible authority appointment process and public document preparation. In addition to legal rules dealing with those topics, the Department of Administration also provided model advisory forms for resolutions to appoint a responsible authority and to produce the public document required by Section 13.05, subdivision 1. (See Minnesota Agency Rules, Chapter 1205 and its Appendix.)

The best evidence that Rosemount could offer to Mr. Walsh, as to its compliance with the provisions of the MGDPA regarding the appointment of a responsible authority, would be copies of all appointment resolutions acted upon by the Rosemount City Council and of the public document required by Section 13.05, subdivision 1. Although Mr. Miles has identified the city clerk and city administrator as Rosemount's responsible authorities over the years, copies of appointment resolutions and the public document would demonstrate clearly that Rosemount has actually done what the MGDPA requires it to do in appointing a responsible authority and identifying that responsible authority to the public.

Apparently, the District has not provided Mr. Rodenhiser with an opportunity to inspect documentation of the appointment of its responsible authority. It should do so immediately.

---

Opinion:

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

Pursuant to Minnesota Statutes, Chapter 13, Independent School District 272, Eden Prairie, did not respond in a timely manner to an October 6, 2003, request for a copy of all Data Practices policies utilized by the District. The Commissioner cannot determine whether Independent School District 272, Eden Prairie, has complied with Minnesota Statutes, Chapter 13, in its determination regarding a November 28, 2003, request for all data which define the District's policies and procedures related to each of 20 topics. If the District has provided all of its data practices policies to the requestor, it has complied with Chapter 13. If it has not provided all of its data practices policies to the requestor, it should do so promptly. Independent School District 272, Eden Prairie, did not comply with Minnesota Statutes, Chapter 13, in its determination regarding a December 17, 2003, request for access to data. It immediately should provide access to the documentation showing the appointment of a responsible authority.

Signed:

Brian J. Lamb
Commissioner

Dated: April 2, 2004

---