Advisory Opinion 03-001

Facts and Procedural History:

On December 12, 2002, IPAD received a letter from Jill E. Coyle, attorney for Independent School District 196, Rosemount-Apple Valley-Eagan. In this letter, Ms. Coyle asked the Commissioner to issue an advisory opinion regarding the classification of certain data maintained by the District. Ms. Coyle's request required clarification with IPAD staff. A summary of the facts of this matter follows.

During the his/her employment with the District, a now former employee was the subject of three separate investigations. The employee resigned following the third investigation. According to Ms. Coyle, each investigation included interviews of students and staff members. The District has denied the former employee's request to review some investigative materials, because the District believes the data contained therein are protected under Minnesota Statutes, sections 13.32 and 13.43. Ms. Coyle stated: [t]he School District felt that redaction would be futile because information regarding the former employee was inextricably intertwined with data about or supplied by students and staff members.

Ms. Coyle characterized the data in question as primarily summaries of interviews with various witnesses and alleged victims, who were District students and staff, that appear to contain private educational and/or personnel data about two or more individuals. She wrote:

Redaction does not appear to be possible in this case with regard to many, if not all of the documents. Although ISD 196 can easily redact the names contained in the documents, the identity of those supplying the data and discussed in the data will easily be traceable based upon the former employee's experiences. This analysis suggests that ISD 196 may not release the enclosed documents to the former employee.

Issue:

In her request for an opinion, Ms. Coyle asked the Commissioner to address the following issue:

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data contained in documents, labeled Exhibits A - Y, that relate to investigations of allegations of misconduct against an Independent School District 196 (Rosemount-Apple Valley-Eagan) employee?

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Discussion:

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 public 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.

Provisions of both state and federal law govern access to data generated by school districts about students. Section 13.32, incorporates by reference much of Title 20 of the United States Code, Section 1232g, the federal Family Educational Rights and Privacy Act (FERPA), and its implementing Rules, Title 34 of the Code of Federal Regulations, Part 99. Subject to limited exceptions, educational data (termed education records under FERPA) are private.

It is possible for private data about more than one person to be contained in the same document. In such cases, when one of the data subjects makes a request for access to data about him/herself, the government entity must attempt to separate the data and provide the requestor with data about him/her without releasing private data about the other data subject(s). Entire documents may not be withheld if redaction will adequately prevent disclosure of private data on other individuals. However, under some circumstances, it may be necessary for the entity to withhold an entire document that contains data on multiple subjects in order to protect private data about subjects other than the requestor. (See Advisory Opinions 94-034, 96-002 and 00-065.)

When government entities are faced with redacting documents containing data about multiple data subjects, it is important for the entity to review each document on a case-by-case basis, to determine whether the release of any of the data may result in the inappropriate release of private data on an individual. Government entities are in the best position to make those determinations, because they have all of the data available and are knowledgeable about the circumstances. Therefore, the Commissioner will offer general rather than detailed guidance with respect to the classification of each data element contained in the documents Exhibits A - Y.

For example, in Exhibit E, there are statements from a couple of named staff members who apparently were some distance from the scene of one incident. The statements include the room number where they were standing, and comments about what they witnessed. It may be the case that, if those employee's names were redacted, their comments alone would not identify either of them as the subjects of private data. It is also possible that the room numbers would need to be redacted, in case the employees could be identified by the room they were standing beside. However, it is not possible for the Commissioner to make that determination without knowing the full context. The District is in the best position to make that judgement. Furthermore, the document contains the initials of a student involved in the incident, who the former employee would be able to identify. As noted above, identifying data about students are private.

Other documents, such as Exhibits N-S, contain statements of students who witnessed an incident that occurred partially in a classroom and partially outside the classroom, and who may be identified by the context, even if their names and initials are redacted. Based on the data available, it is not possible to determine if, for example, the release of any data in the documents would reveal private data to the former employee because of circumstances unknown to the Commissioner.

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Opinion:

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

Pursuant to Minnesota Statutes, sections 13.32 and 13.43, data on individuals contained in documents, labeled Exhibits A - Y, that relate to investigations of allegations of misconduct against an Independent School District 196 (Rosemount-Apple Valley-Eagan) former employee are classified as private. If it is not possible for the District to redact the interview summaries, then it is appropriate for the District to withhold entire documents from the data subject who requested access. The District is in the best position to make that determination.

Signed:

Brian J. Lamb
Commissioner

Dated: January 16, 2003

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