Advisory Opinion 05-040

Facts and Procedural History:

On November 2, 2005, IPAD received a letter dated November 1, 2005, from Ann Walther, an attorney representing the Police Officers' Federation of Minneapolis (POFM). In her letter, Ms. Walther asked the Commissioner to issue an advisory opinion regarding access to certain data from the City of Minneapolis.

IPAD, on behalf of the Commissioner, wrote to Craig Steiner, the City's Data Practices Compliance Official, in response to Ms. Walther's request. The purposes of this letter, dated November 8, 2005, were to inform him of Ms. Walther's request and to ask him to provide information or support for the City's position. On November 18, 2005, IPAD received a response, dated same, from Mr. Steiner.

A summary of the facts as provided by Ms. Walther is as follows. In her opinion request, she wrote:

In May, 2005, the City of Minneapolis began civil service testing for the position of lieutenant. After the first phase of testing, several POFM members sought copies of their tests. By letter dated August 22, 2005, [Ms. Walther] requested of the Chief of Police that any employee who sat for the May 21, 2005, lieutenant's examination be provided with a copy of the test at his or her request.

Ms. Walther provided to the Commissioner a copy of the City's response, dated September 1, 2005:

we are unable to comply with your request. The City of Minneapolis is unable to provide this information. Under [Minnesota Statutes, section 13.34], the information requested is nonpublic. The responsible authority has determined that release of this information would compromise the objectivity, fairness, or integrity of the examination process.

In an email dated October 6, 2005, one of the POFM members sent an email to the City regarding his previous September 27, 2005, request to review the lieutenant's test.

The City responded in an email dated October 14, 2005:

The City's position has not changed Under [section 13.34], the information is nonpublic. The responsible authority has determined that release of this information would compromise the objectivity, fairness, or integrity of the examination process.

In an email dated October 18, 2005, Ms. Walther wrote to the City, is the City's position any different if the employees are seeking ACCESS to their examinations, rather than copies of their examination?

The City responded, the City's position is not different either way.

Issue:

Based on Ms. Walther's opinion request, the Commissioner to address the following issue:

Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, in responding to a data subject's request to review the test s/he took as part of the lieutenant's examination?

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Discussion:

Pursuant to Minnesota Statutes, section 13.04, individuals are entitled to gain access to data of which they are the subject. Generally, when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.

Section 13.34 states:

Data consisting solely of testing or examination materials, or scoring keys used solely 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 her opinion request, Ms. Walther wrote:

With respect to the completed lieutenant's tests, clearly [section 13.34] allows the individual POFM members to access (although not to copy) their examinations except if such access would compromise the objectivity, fairness, or integrity of the examination process. The City has relied upon this language to deny the individual POFM members access to their tests. Further, it is our position that the City is not entitled to claim that the integrity of the testing process would be compromised by access to the tests now that the testing process has been completed. To find otherwise would render [section 13.34] superfluous because a governmental entity could always claim that access to the tests could compromise the testing process, thereby effectively ensuring an employee could never see his or her test.

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

The position of Lieutenant is a supervisory position. The written portion of the test is in a multiple-choice format. It is a situational, judgment test that has been validated specifically for law enforcement purposes.

Each test question consists of a brief description of a police management situation that a Lieutenant is likely to face.In other words, the candidates are required to identify what is the best initial action and what is the worst initial action for each situation.

Because of the breadth and scope of the Lieutenant's examination, combined with its specialized application to law enforcement, the test itself is not easy to create, let alone replicate on a repeated basis. Moreover, the cost associated with the test's development is expensive. Recreating the test every time a Lieutenant's position becomes open creates an undue financial hardship for an employer in the public sector.

With respect to the completed Lieutenant's test, [section 13.34] provides an exception to the general rule that completed versions of the examinations shall be accessible to the individual who completed the examination. A close review of the statute reveals that the City need not disclose the requested data where the responsible authority determines that access would compromise the objectivity, fairness, or integrity of the examination process.

POFM's final assertion is that since the testing process is now completed, the City is not entitled to claim that the integrity of the testing process would by compromised by access to the examination. Such a position, however, ignores the specific language of [Chapter 13] and necessitates a narrow interpretation of what constitutes the testing process. POFM is well aware that the examination process is ongoing. As the Department's ranks swell, so, too, does the number of Lieutenants. As such, the Department anticipates that additional testing will take place and desires to use some or all of the testing components at some time in the near future. Further, as noted above, the cost associated with the development of the Lieutenant's examination is expensive.

Moreover, the individuals who seek access to the examination are the very same individuals who may apply for the new openings. Clearly, under these circumstances, it is not unreasonable for the responsible authority to determine that revealing the examination would compromise the objectivity, fairness, or integrity of the examination process.

The Commissioner has the following comments. Section 13.34 essentially has two parts. The first part classifies data solely consisting of testing or examination materials, or scoring keys used solely to determine individual qualifications for appointment or promotion in public service. Any of these data that would compromise the objectivity or fairness of the testing or examination process are classified as nonpublic. In Chapter 13, a classification of nonpublic applies only to data that are not about an individual. Nonpublic data are not accessible to the public but are accessible to the subjects, if any. Thus, because Ms. Walther's clients are individuals, they cannot be the subjects of the testing or examination materials/scoring keys and the City is not required to provide them with any such data.

The second part of section 13.34 discusses treatment of completed versions of examinations. An individual who has completed an examination can gain access to his/her completed exam unless the responsible authority determines that access would compromise the objectivity, fairness, or integrity of the examination process.

Here, it is not clear whether Ms. Walther's client was asking to review the test questions or copies of his/her completed examination. Regardless, it appears the City responded appropriately. First, the test questions - themselves - are nonpublic data and not accessible to Ms. Walther's client(s). Second, Mr. Steiner makes valid arguments as to why allowing an individual who has taken the lieutenant's examination either to inspect or get a copy of his/her completed examination would compromise the objectivity/fairness/integrity of the testing process. Therefore, the City responded appropriately in denying Ms. Walther's clients access to the data.

A final note is in order. In her opinion request, Ms. Walther objected to the fact that while the City denied access to the data based on section 13.34, the City has never explained how access by the individuals to their tests would compromise the testing process. It does not appear Ms. Walther made a data request for data documenting how the City reached its determination that objectivity/fairness/integrity would be compromised if it allowed access to the completed examinations. If she had, and the City has created and maintains such data, the City would have been required to provide the data, as they would be public.

In his comments to the Commissioner, Mr. Steiner stated that section 13.34 does not require the City to explain its reasoning. This is correct. However, it appears Minnesota Statutes, section 15.17, the official records act, does require creation and retention of such data.

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Opinion:

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

The City of Minneapolis complied with Minnesota Statutes, Chapter 13, in responding to a data subject's request to review the test s/he took as part of the lieutenant's examination.

Signed:

Dana B. Badgerow
Commissioner

Dated: December 14, 2005

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