This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:
On July 29, 2002, IPAD received a letter from Mike Herbst. In his letter, Mr. Herbst asked the Commissioner to issue an advisory opinion regarding his access to certain data that Minnetonka Public School District 276 maintains.
IPAD, on behalf of the Commissioner, wrote to Dennis Peterson, Superintendent of the District, in response to Mr. Herbst's request. The purposes of this letter, dated August 2, 2002, were to inform him of Mr. Herbst's request and to ask him to provide information or support for the District's position. On August 23, 2002, IPAD received a response, dated August 21, 2002, from Michael Lovett, Assistant Superintendent for Human Resources.
A summary of the facts as Mr. Herbst presented them is as follows. In an email to the District dated July 3, 2002, Mr. Herbst referred to data the District had provided to him in response to previous data requests. He wrote:
After fully reviewing all documents and comments supplied by your office on June 27th and April 8th I can only find ART 5 section 8, and section 7 from the NFHS Basketball Handbook, and 3.1.2 from Minnetonka Public Schools Administrative Rules and Procedures July 16th 2002, concerning procedure and policy on participant injury during an MCES program or specifically a game (basketball, football,...).
I am summarily re-requesting an acknowledgment whether District 276 has any further policy and procedure on what action/steps should be taken when a player is injured or has a potential injury during an MCES game, if so I would like to request to review that data.
In his opinion request, dated July 29, 2002, Mr. Herbst wrote, "To date there has been no contact concerning this request."
In his request for an opinion, Mr. Herbst asked the Commissioner to address the following issue:
Pursuant to Minnesota Statutes, section 13.03, subdivision 2, when an individual requests public data of which s/he is not the subject, government entities are required to respond in an appropriate and prompt manner. Minnesota Rules, part 1205.0300, provides further guidance stating that entities must respond within a reasonable time.
Mr. Herbst made the data request that is the subject of this advisory opinion in an email on July 3, 2002. He addressed the email to Mark Wolak (the District's previous data practices compliance official), Superintendent Peterson, and two other persons. At the time Mr. Herbst submitted his opinion request, he stated that he had not received a response from the District.
Mr. Lovett, along with his comments to the Commissioner, attached a copy of a letter he sent to Mr. Herbst dated August 21, 2002. Mr. Lovett also attached a copy of a letter he sent to Mr. Herbst dated August 13, 2002.
In his August 13 letter to Mr. Herbst, Mr. Lovett wrote:
Effective August 1, the Minnetonka School Board appointed me to the role of the Data [Practices] Compliance [Official]...
I want to acknowledge that I have just today had an opportunity to review your request...and would like an opportunity to visit with you so that we might be in position to furnish you the data which you are requesting.
At this point, without further investigation of our practices at a supervisory level, I am not aware of whether we have any informal administrative procedures beyond that which is outlined and [sic] administrative rules and procedures S-3, a copy of which Dr. Wolak apparently provided to you on June 27, 2002.
If you wish to be in contact with me to provide greater detail about your request, I would request that you do so by August 20. If I have not heard from you by that time, I will respond in writing based [sic] your email of July 3, 2002.
In his August 21 letter to Mr. Herbst, Mr. Lovett wrote:
I met with [District staff] regarding your request...
According to [staff], no other written procedures or policies exist to his knowledge other than that information that was sent to you by Dr. Mark Wolak on June 27, 2002. >
In regard to the delay in the response of your email of July 3, I do not know why you did not receive a response from Dr. Mark Wolak prior to his last day of work in July. My understanding was that Dr. Mark Wolak certainly made an effort to respond to anything that was still current so that he could close all matters regarding data practices prior to his departure....
I would request that any requests you do make be made in writing, and signed by you. You should feel free to telephone or email to confirm that I have received items.
In addition, I would welcome an opportunity to visit with you on any requests that you have.
In his comments to the Commissioner, Mr. Lovett wrote:
Again, as I understand the facts, Mr. Herbst sent an email to Dr. Wolak, then the responsible authority on July 3, 2002, and had not heard back from Dr. Wolak prior to his departure from the school district at the end of July.
In that Dr. Wolak is no longer employed by the Minnetonka Public Schools, it is difficult to explain conclusively what may have happened, but I believe that Dr. Wolak had responded to all matters about which he was aware prior to his departure. It may be possible that while Mr. Herbst has a record of the email being sent and received by the school district, for some reason the school district's email system was not functioning or for one reason or another Dr. Wolak did not receive the email. I do not know whether there were other attempts to check with Dr. Wolak by other means to ascertain whether he had indeed received the email and was planning on responding.
In my August 21 letter to Mr. Herbst, I suggested a protocol for future requests which should include the initial request to be in writing and signed by the requesting party, with telephone contact or email contact a reasonable and acceptable way to check to assure that we have received the request.
In summary, insofar as I can see from the record, this school district was in compliance with the request which Mr. Herbst made through Dr. Wolak's response of June 27, 2002. I do not know whether Dr. Wolak was aware of the July 3 request. In any event, when the Board appointed me the responsible authority, I have endeavored to respond on a reasonable timeline, as reflected in the attached documents.
The Commissioner has the following comments. Mr. Herbst made his data request on July 3 and did not receive a response from the District until August 13, approximately six weeks later. A determination of whether such a response is appropriate, prompt, or reasonable depends on the facts and circumstances of each case. Here, given the nature of Mr. Herbst's request, six weeks is not appropriate, prompt, or reasonable. Although Mr. Lovett pointed out that Mr. Wolak left the District in July and the District appointed Mr. Lovett to be the Data Practices Compliance Official (DPCO) on August 1, Mr. Herbst and other members of the public should not bear the burden of the District reassigning positions. Superintendent Peterson also was sent and apparently received a copy of Mr. Herbst's email. The District has a statutory obligation to respond to data requests regardless of which staff person performs the role of DPCO.
A final note is in order. Mr. Lovett suggested to Mr. Herbst that he (Mr. Herbst) make future requests in writing and sign them. Pursuant to section 13.03, subdivision 2, the District is required to establish policies/procedures that explain how an individual may gain access to public data. Clearly, any procedures relating to accessing public data must apply equally to all individuals seeking access to public data.
Based on the facts and information provided, my opinion on the issue that Mr. Herbst raised is as follows:
David F. Fisher
Dated: September 11, 2002