Advisory Opinion 04-078

Facts and Procedural History:

On October 25, 2004, IPAD received a letter dated October 21, 2004, from Peter Nickitas, on behalf of his client, X. In the letter, Mr. Nickitas asked the Commissioner to issue an advisory opinion regarding X's access to certain data that the Minnesota Racing Commission maintains.

In response to Mr. Nickitas' request, IPAD, on behalf of the Commissioner, wrote to Richard Krueger, Executive Director of the Commission. The purposes of this letter, dated October 28, 2004, were to inform him of Mr. Nickitas' request and to ask him to provide information or support for Commission's position. On November 4, 2004, IPAD received a response, dated November 3, 2004, from Mr. Krueger.

A summary of the facts as Mr. Nickitas provided them is as follows. In an email dated August 16, 2004, X wrote to the Commission:

Last Friday, I made a request for data under [Chapter 13] for data concerning a...test that was taken 9/5/2000. I will again be coming to the MRC office this coming Friday, August 20, 2004 to make that same request. The request is for the test or copy of the test, the scorecard, answer key and the percentages necessary to have a passing grade. At that time it is requested that a person delegated by the MRC be able to review the test that was taken in September, 2000 with [me.] [I have] and continue to contend that [I] submitted a test to the stewards that would have passed if fairly graded in 2000. [I] based on the data practices act can demand to see the test for six years and [am] exercising [my] rights for access to the data.

Apparently, the Commission responded in an email on August 19, 2004:

In reply to your e-mail, the Minnesota Racing Commission is denying your request in reference to the trainer's test. We feel we have completely answered your questions on previous requests....

In reference to your application for a...license, we are returning your application and licensing fee....

We are also requesting that you do not come to the MRC [Minnesota Racing Commission] office tomorrow, Friday, August 20th or any time in the future....

In his opinion request, Mr. Nickitas wrote:

[X] wrote a letter to the Racing Commission dated August 16, 2004, requesting access to data of and concerning him in the Commission's possession or control. Specifically, [X] demanded access to the score sheet for the...exam [X] took...in 2000, and all other data accessible to him under Minn. section 13.34....The Commission admits that [X] took the written test in question. The Commission refused him access, in its e-mail dated 20 August 2004.

Issue:

In Mr. Nickitas' request for an opinion, he asked the Commissioner to address the following issue:

Did the Minnesota Racing Commission comply with Minnesota Statutes, Chapter 13, in responding to an individual's August 16, 2004, request for the following data relating to a trainer's test: the test or copy of the test, the scorecard, answer key and the percentages necessary to have a passing grade ?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

Of relevance to this opinion, section 13.34, examination data, states:

Data consisting solely of testing or examination materials, or scoring keys used to determine individual qualifications for appointment or promotion in public service, or used to administer a licensing examination, or academic examination, the disclosure of which would compromise the objectivity or fairness of the testing or examination process are classified as nonpublic, except pursuant to court order. Completed versions of personnel, licensing, or academic examinations shall be accessible to the individual who completed the examination, unless the responsible authority determines that access would compromise the objectivity, fairness, or integrity of the examination process. Notwithstanding section 13.04, the responsible authority shall not be required to provide copies of completed examinations or answer keys to any individual who has completed an examination.

In his comments to the Commissioner, Mr. Krueger wrote:

The issue that the Commissioner desires to address in an advisory opinion regarding our not responding to an individual's request relating to a trainer's test; the test or copy of the test, the scorecard, answer key and the percentages necessary to have a passing grade? , is quite simple, we don't have the material requested.

It is customary that we review the results of a test with the person taking the test, but we do not give them a copy of the test... I've indicated this to [X] many times. I have discussed this matter with the Chief Steward at that time who administered the test to [X]. At this time he has no records in his possession regarding this matterhellip;.

In short, we have no record to produce for [X]...

When X made his/her data request on August 16, 2004, the Commission was required to respond by (1) advising X that the data do not exist; (2) advising X that the data are classified so as to deny X access; or (3) arranging a time for X to inspect the requested data. Regarding any data of which X is the subject, the Commission was required to respond within ten working days. (See Minnesota Statutes, section 13.04, subdivision 3.) Regarding any data of which X is not the subject, the Commission was required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)

The Commission's August 20, 2004, email did not contain any of the possible appropriate responses listed above; rather, it states, We feel we have completely answered your questions on previous requests. However, Mr. Krueger, in his comments to the Commissioner, did not explain how or when the Commission previously had answered X's data request. Thus, in the Commissioner's opinion, the Commission did not comply with Chapter 13 in its response to X's August 16, 2004, request.

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Opinion:

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

The Minnesota Racing Commission did not comply with Minnesota Statutes, Chapter 13, in responding to an individual's August 16, 2004, request for the following data related to a trainer's test: the test of copy of the test, the scorecard, answer key and the percentages necessary to have a passing grade.

Signed:

Dana B. Badgerow
Commissioner

Dated: December 15, 2004

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