Advisory Opinion 03-006

Facts and Procedural History:

On January 27, 2003, IPAD received a letter dated same from Kevin Rupp and Mark Girouard, attorneys representing Independent School District 709, Duluth. In their letter, Mr. Rupp and Mr. Girouard asked the Commissioner to issue an opinion regarding the classification of certain data the District maintains.

Also on January 27, 2003, IPAD received a letter dated January 22, 2003, from Peter Nickitas, an attorney who made the data request which prompted the District to request this opinion. Mr. Nickitas represents Z. In his letter, Mr. Nickitas asked the Commissioner to issue an opinion on the same matter the District presented.

The Commissioner moved forward with the District's request and invited Mr. Nickitas to submit comments in addition to those he provided with his opinion request. Mr. Nickitas did not present further comments.

A summary of the facts is as follows. In their request, Mr. Rupp and Mr. Girouard wrote:

In [2002], [one of the District's Directors] received a one-page memorandum....This memorandum was written by [X - a District employee]. A copy of the memorandum is enclosed for your review and analysis.

The memorandum addresses incidents observed by X when [s/he] was [working]..in the classroom of another District employee, referred to herein as Y ...The memorandum describes [action] by another District employee, referred to herein as Z , who [also was working in the classroom].

Z's attorney...has requested a copy of the memorandum. Our office provided Mr. Nickitas with a copy of the memorandum, from which the names of X and Y were redacted.

Issues:

In their request for an opinion, Mr. Rupp and Mr. Girouard asked the Commissioner to address the following issues:

Pursuant to Minnesota Statutes, Chapter 13, does the memorandum contain private personnel data on employees of Independent School District 709, Duluth? Pursuant to Minnesota Statutes, Chapter 13, is the District required to provide a copy of the memorandum from which the identifying information about X and Y have not been redacted?

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Discussion:

Issue 1:

Pursuant to Minnesota Statutes, Chapter 13, does the memorandum contain private personnel data on employees of Independent School District 709, Duluth?

Pursuant to Minnesota Statutes, section 13.04, data subjects have the right to gain access to public and private data about themselves. Private data are accessible to the data subject, but not to members of the public.

Pursuant to section 13.02, subdivision 5, data on individuals are all government data in which any individual is or can be identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data and the data are not accessed by the name or other identifying data of any individual.

Data about current and former employees are classified pursuant to section 13.43. Subdivision 2 of section 13.43 enumerates the personnel data that are public and subdivision 4 classifies most other personnel data as private.

Often times, a single document contains data about multiple data subjects. In such cases, when one of the data subjects makes a request for the document, the government entity must take care not to release private data about the other subjects. It is important for the entity to review each document on a case-by-case basis to determine the appropriateness of any release. Government entities are in the best position to make those determinations because they have all of the data related to the matter and are familiar with the circumstances.

In support of redacting the names of X and Y, Mr. Rupp and Mr. Girouard wrote:

With regard to X, in addition to [his/her] name, the memorandum includes references to [his/her] observations of Z's [action], statements that X made to Z regarding the same, X's subsequent supervision of a student...and X's attempts to engage students in classroom activities. These are all data on X that the district would not have if [s/he] were not an employee....

With regard to Y, in addition to [his/her] name, the memorandum includes the statement that Z's [action] represented the way things were done in Y's classroom. This is data on Y...

The Commissioner has the following comments. Upon review, it appears the memorandum contains data about X, Y, and Z. All are either current or former employees of the District; therefore, data about them are classified pursuant to section 13.43.

The Commissioner first will address the data about X. X made a complaint about Z. Mr. Nickitas, in his letter, stated that the District had discharged Z. Depending upon where the District is in the complaint process, the fact that X made a complaint about Z may be private data. The Commissioner also wishes to note that if the allegation against Z involves harassment, section 13.43, subdivision 8, may apply. Subdivision 8 provides that if a disciplinary proceeding is initiated, data on a complainant or witness shall be available to the complained-about employee as may be necessary for the employee to prepare for the proceeding.

Assuming X's identity is private, it is not clear why the District redacted only X's name. As the Commissioner has discussed in previous opinions, identifying data about an individual often include more than the individual's name. For example, the District did not redact the specific week X observed the behavior that led X to complain about Z. By not redacting the date, it is possible Z could identify X. In addition, the District did not redact the fact that X had worked in Y's classroom for a certain number of consecutive days. The inclusion of this information also might lead Z to be able to identify X.

Even if X has been identified as the complainant, there may be some remaining data in the memorandum that are private data about X. These are the types of data Mr. Rupp and Mr. Girouard described as X's observations, and so on, of Z. The District, however, must determine whether these are data about X or whether X's name is only incidental to the data.

Regarding the data about Y, if X is not known as the complainant, it may have been necessary for the District to redact the fact that the observations leading to the complaint occurred while X worked in Y's classroom. However, if X's identity is known, the additional data referenced by Mr. Rupp and Mr. Girouard could be data about Y, or it could be that Y's name in relation to the data is only incidental. Again, the District is in the best position to make these determinations.

Documents often contain data about multiple data subjects, as is the case here. In such situations, it is important for the government entity carefully to exercise care in reviewing the documents in terms of the factual context. The Commissioner encourages the District to review the memorandum in the context of the existing dispute to determine which of the data are private data about which employee.

Issue 2:

Pursuant to Minnesota Statutes, Chapter 13, is the District required to provide a copy of the memorandum from which the identifying information about X and Y have not been redacted?

Private data about an individual are accessible only to that individual and to certain persons within the government entity maintaining the data. Private data about an individual are not accessible to members of the public. Thus, Z is entitled to gain access to any public and private data about him/her in the memorandum, as well as any other public data that exist. Z, however, is not entitled to gain access to any private data about X or Y.

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Opinion:

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

Pursuant to Minnesota Statutes, Chapter 13, the memorandum appears to contain private personnel data on employees of Independent School District 709, Duluth. The District is in the best position to make that determination. Pursuant to Minnesota Statutes, Chapter 13, the District is required to redact private data about X and Y before providing a copy of the memorandum to Z.

Signed:

Brian J. Lamb
Commissioner

Dated: March 12, 2003

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