Advisory Opinion 05-035

Facts and Procedural History:

On September 19, 2005, IPAD received a letter dated September 15, 2005, from Paul Ratwik and Jennifer Wolf, attorneys representing Independent School District 273, Edina. In their letter, Mr. Ratwik and Ms. Wolf asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains.

A summary of the facts is as follows. In their opinion request, Mr. Ratwik and Ms. Miller wrote:

The District requests an opinion on an issue that has arisen in connection with its search for a new superintendent. As part of its search for qualified applicants for employment, the District currently requires finalists for selected District vacancies, including the superintendent position, to undergo an assessment conducted by a private consulting firm. The assessment process is one tool used by the District to assess a candidate's compatibility with the District's needs and to predict whether a candidate will be successful in the relevant position.

The consultant's assessments are grounded in organizational psychology and the science of measuring and assessing an applicant's personality and skills. The consultant uses a highly skilled but subjective method to assess a candidate's strength [sic] and weaknesses. The consultant does not rank the candidates or compare and contrast the candidate's [sic] against one another. Rather, the consultant conveys to the District its conclusions and recommendations about an applicant's strengths and weaknesses relating to the vacant position;.

Following the analysis of information, the consultant provides a verbal report to the District of the perceived strengths and weaknesses of the candidate's professional capabilities in the context of the requirements of the vacant position. A written report also is provided to the District.

The District treats the reports it received from the consultant as private data and has classified the reports as such in the past. However, the District is concerned that an argument could be made that the reports, either in whole or part, could be construed to constitute a relevant test score under Minn. Stat. section 13.43, subd. 3 and, therefore, perhaps constitute public information.

Issues:

Based on Mr. Ratwik and Ms. Wolf's opinion request, the Commissioner agreed to address the following issue:

Are the following data classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3: a written report provided to a school district by a consultant? Are the following data classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3: responses by an applicant to questionnaires and assessment instruments analyzing the strengths and weaknesses for an applicant for a position of employment used by the consultant to reach his/her conclusions and make his/her recommendations?

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Discussion:

Issue 1:

Are the following data classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3: a written report provided to a school district by a consultant?

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

Data about individuals who are employees of a government entity or who apply for employment with government entities are classified pursuant to section 13.43. For purposes of this opinion, the following data about all applicants are public: veteran status, relevant test scores, rank on eligible list; job history; education and training, and work availability. An applicant's name is not public until s/he becomes a finalist. (See section 13.43, subdivision 3.)

In their opinion request, Mr. Ratwik and Ms. Wolf wrote,

the reports do not constitute test scores as the term is commonly used.Typically when a term such as test score is used, it is to describe a numerical score generated thru the application of one of a battery of tests to obtain an objective result that will permit a comparison of one individual's achievements against another individuals [sic].

In this case, the assessment reports do not yield an objective score. They are not used to provide a ranking of the applicants or compare one applicant's skills to another. Rather, the reports provide the District with a trained consultant's subjective interpretation of an applicant's perceived strengths and weaknesses in relation to a specific position with the District. Unlike an objective exam, there is no right or wrong answer during the assessments. Rather, these assessments are an additional tool used by the District to determine whether a candidate's professional style matches and/or is compatible with that of the District.

As there is no definition in Chapter 13 of relevant test score, a reasonable interpretation of the plain meaning of the term is as follows: a quantifiable, objective, as opposed to subjective, score from an evaluation/test that is a requirement of the job for which an individual has applied. Given this definition, it does not seem that the results of an applicant's IQ test, Meyers-Briggs test, or other psychological/personality tests would be public data. The Commissioner believes this position is buttressed by the fact that if an employee of a government entity took an IQ or personality test, the results of the test would not be public under section 13.43. In other words, the Legislature's pattern has been to classify data of such a highly sensitive nature as private.

The issue here is whether a written report comprising the consultant's conclusions and recommendations contains public data, specifically relevant test score data. Given Mr. Ratwik and Ms. Wolf's description of the report, it seems unlikely that the written report contains relevant test score data. Therefore, the data in the report are private personnel data pursuant to section 13.43.

Issue 2:

Are the following data classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3: responses by an applicant to questionnaires and assessment instruments analyzing the strengths and weaknesses for an applicant for a position of employment used by the consultant to reach his/her conclusions and make his/her recommendations?

In their opinion request, Mr. Ratwik and Ms. Wolf wrote:

First, finalists respond to various assessment questionnaires. These questionnaires are designed to obtain information regarding the applicant's personality, professional background and capabilities and management style. For example, one of the questionnaires is a personality inventory. Another questionnaire requests detailed information about a candidate's prior professional experience.

The candidates also participate in simulated exercises presenting real-life scenarios that the candidate may face if hired. The exercises consist of both written and interactive scenarios.

Finally, the candidates may also take standardized tests which assess their intellectual capabilities.

As discussed in Issue 1, an applicant's response is public if it is a quantifiable, objective, as opposed to subjective, score from an evaluation/test that is a requirement of the job for which the individual has applied. Also as discussed in Issue 1, the Commissioner does not believe that results from psychological/personality tests constitute relevant test scores.

The Commissioner has not seen the questionnaires/assessment instruments/standardized tests; therefore, she can provide only limited guidance. If the scores are quantifiable and objective, and are a requirement of the applied-for job, the scores are public.

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Opinion:

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

It seems unlikely that a written report provided to a school district by a consultant would contain public data pursuant to Minnesota Statutes, section 13.43, subdivision 3. The following data are classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3, if they constitute a quantifiable, objective, as opposed to subjective, score from an evaluation/test that is a requirement of the job for which an individual has applied: responses by an applicant to questionnaires and assessment instruments analyzing the strengths and weaknesses for an applicant for a position of employment used by the consultant to reach his/her conclusions and make his/her recommendations.

Signed:

Dana B. Badgerow
Commissioner

Dated: November 17, 2005

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