Minnesota Department of Administration Advisory Opinion 04-003

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 November 20, 2003, IPAD received a letter from James Rodenhiser. In his letter, Mr. Rodenhiser asked the Commissioner to issue an advisory opinion regarding his access to certain data School District 272, Eden Prairie, maintains. IPAD requested clarification, which Mr. Rodenhiser provided on December 1, 2003. IPAD again requested clarification, which Mr. Rodenhiser provided on December 4, 2003. IPAD requested still further clarification, which Mr. Rodenhiser provided also on December 4, 2003.

In response to Mr. Rodenhiser's request, IPAD, on behalf of the Commissioner, wrote to Melissa Krull, Superintendent of the District. The purposes of this letter, dated December 8, 2003, were to inform her of Mr. Rodenhiser's request and to ask her to provide information or support for the District's position. On December 17, 2003, IPAD received a response, dated same, from Maggie Wallner and Charles Long.

A summary of the facts is as follows. In a letter dated October 6, 2003, Mr. Rodenhiser requested the following data:

2. The names, addresses, telephone numbers, email addresses, and any other readily available directory information for all parents with children in the Eden Prairie School District.

3. The names, addresses, grade level, age, date of birth, and any other readily available directory information for all children in the Eden Prairie School District.

He wrote, "For requests 2 and 3 I am requesting the data be provided on electronic media (cd-rom preferred) in a text format, if available." Mr. Rodenhiser also wrote, "Please provide...all itemized costs related to the above requests for my approval before incurring any costs."

In a letter dated October 13, 2002, Mary Bollinger, Executive Director of Human Resources, wrote, "We're working on gathering the other information which you requested and will get back to you shortly. For your information, the cost of each individual data file is $75.00. It appears from your letter that you have requested two different data files, which would cost $150.00."

In a letter dated November 3, 2003, Mr. Rodenhiser wrote to Ms. Bollinger. He wrote, "Would you please provide me with a detailed component breakdown of how you calculated the costs of the lists?"

In a letter dated November 10, 2003, Ms. Bollinger wrote to Mr. Rodenhiser. She wrote, "School districts must establish a fee for providing individuals with student directory information. The fee for each list is established at $75 per list per district policy."

In a letter dated November 17, 2003, Mr. Rodenhiser wrote to Ms. Bollinger. He wrote, "In your letter of 11/10/03 you ignored my questions regarding...the breakdown of the costs associated with providing the lists. I will be requesting an advisory opinion on this matter from the Commissioner of Administration under Minnesota Statutes Section 13.072."

In a letter dated November 18, 2003, Ms. Bollinger wrote to Mr. Rodenhiser. She wrote, "You will be provided with the public data you have requested upon receipt of your payment of $150.00 at $75.00 per list. I do not have a breakdown of costs, but would be happy to expedite your request for data in an electronic format."



Issues:

In his request for an opinion, Mr. Rodenheiser asked the Commissioner to address the following issues:

  1. Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 272, Eden Prairie, respond in a timely manner to an October 6, 2003, request for data regarding a breakdown of costs associated with other data requested October 6, 2003?
  2. Is Independent School District 272's (Eden Prairie) charge of $75 per "data file" allowable under Minnesota Statutes, Chapter 13?



Discussion:

Issue 1:

Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 272, Eden Prairie, respond in a timely manner to an October 6, 2003, request for data regarding a breakdown of costs associated with other data requested October 6, 2003?

Pursuant to Minnesota Statutes, section 13.03, government entities must respond to requests for data in a prompt and appropriate manner. Minnesota Rules, section 1205.0300, provides additional guidance and states that entities must respond within a reasonable time.

Here, in a letter dated October 6, 2003, Mr. Rodenhiser asked for "all itemized costs related to the above [data] requests."

In a letter dated October 13, 2003, Ms. Bollinger wrote, "...each individual file is $75.00. It appears from your letter that you have requested two different data files, which would cost $150.00."

In a letter dated November 3, 2003, Mr. Rodenhiser wrote and asked the District to provide him with a "detailed breakdown of how you calculated the costs of the lists." Mr. Rodenhiser renewed his request in a letter dated November 17, 2003.

In a letter dated November 18, 2003, Ms. Bollinger wrote, "I do not have a breakdown of costs..."

In their response, Ms. Wallner and Mr. Long stated:

The foregoing facts show that the School District met its obligations under [Chapter 13] to respond to Mr. Rodenhiser's request in an appropriate and prompt manner. It responded to each of Mr. Rodenhiser's letters, including information regarding the costs with his data practices requests, within ten calendar days. Thus, the School District's responses were timely and in compliance with Minnesota Statute Section 13.03, Subdivision 2(a).

It is the Commissioner's opinion that the District did respond in a timely manner to Mr. Rodenhiser's requests. In the October 6, 2003, letter, he asked for "all itemized costs" related to the data he requested. The District responded within a reasonable time by advising Mr. Rodenhiser that the charge for each data file is $75. In the November 23, 2003, letter, Mr. Rodenhiser asked what the Commissioner considers to be a slightly different question - to be provided with a detailed breakdown of the assessed charge. The District responded within a reasonable time by advising Mr. Rodenhiser that it does not have a breakdown of the cost.

The following note is in order. In Chapter 13, the rights of individuals and the duties of government entities exist only as they relate to government data. Thus, an entity is not required to respond to questions in which the individual does not seem to be asking to either inspect or acquire copies of government data as those data exist in a particular format. Mr. Rodenhiser's questions border on not being requests for access to data. The District, however, appears to have considered them to be requests for data. The Commissioner encourages his readers to make sure that data requests are framed in ways such that there is no room for question. An example of Mr. Rodenhiser making a data request as opposed to asking a question is the following: I would like to inspect (or get copies of) all data relating to the computation of or rationale for the charge being assessed.

Issue 2:

Is Independent School District 272's (Eden Prairie) charge of $75 per "data file" allowable under Minnesota Statutes, Chapter 13?

When an individual requests copies of data of which s/he is not the subject, the government entity may charge the actual costs of searching for and retrieving the data and making the copies. (See Minnesota Statutes, section 13.03, subdivision 3(c), and Minnesota Rules, section 1205.0300.)

In their comments to the Commissioner, Ms. Wallner and Mr. Long wrote:

In this case, the District has established a policy regarding community access to student directory information....The policy allows members of the public to request a "list with directory information" from the District's Information Systems Specialist and notifies the public that the "costs for this service include $75 per request for generating the lists..."

The $75.00 fee per directory file request became effective upon enactment by the School Board on June 28, 2000....The District's technology department based the rate on a determination of time and materials necessary to process such requests....

The District's Information Systems Specialist is responsible for processing requests for directory information or parts thereof. The IS Specialist costs the District $34.22 per hour (salary plus benefits and taxes)....It takes the IS Specialist two hours to retrieve and process directory information on the District's 10,400 students. Thus, the IS Specialist's time required to process the request is $68.44.

The data is then forwarded to the secretarial and accounting clerk who compiles it, sends the data, invoices it, and credits it to accounts receivable. This takes approximately 30 minutes and costs the District between $8.32 and $10.86 (salary plus benefits and taxes) depending on the particular employee....Finally, the cost of the supplies, in this case the cd-rom and mailing, adds an additional $1.62.

The sum total of these costs is a minimum of $78.38 and a maximum of $80.92. Therefore, the School District's fee of $75.00 per file does not exceed the actual costs. Moreover, the fee is reasonable. The Eden Prairie School District is one of the largest in the state. It has an enrollment of more than 10,400 students. Retrieving specific directory information on each of these students is a time-consuming and labor-intensive process. Each of the components of the fee established by the School District is consistent with those recognized in Minnesota Rules 1205.0300.

Ms. Wallner and Mr. Long state that it takes the Information Systems Specialist, whose hourly rate is $34.22, two hours to retrieve and process directory information on the District's students. As discussed above, section 13.03, subdivision 3(c), provides that government entities may charge the actual costs of searching for and retrieving the data as well as the costs of making the copies. The Commissioner is of the opinion that the District has not sufficiently demonstrated how the $68.44 ($34.22 x 2) portion of the $75 fee represents either searching for and retrieving the data, or the costs of copying. The Commissioner reminds his readers that entities may not charge for separating private and public data and that pursuant to section 13.03, subdivision 1, entities must keep "records containing government data in such an arrangement and condition as to make them accessible for convenient use." In the instance of directory information, the Federal Educational Rights and Privacy Act (FERPA) requires the District to go through a process of designating student data as directory (public) information. Once the District knows which data are directory information, Chapter 13 and Minnesota Statutes, section 15.17 (the Official Records Act) require that the data be made easily accessible to the public.

Ms. Wallner and Mr. Long wrote that the Information Systems Specialist requires two hours to "retrieve" and "process" directory information on the District's students. Although the District did not say, the Commissioner assumes the System Specialist works with some type of database to pull together data to respond to a data request. In that context, it is not clear what the Systems Specialist is doing when s/he is "retrieving" and "processing" directory information and how his/her actions represent the actual cost of providing a copy. It would have been helpful it the District had provided more information along those lines. Without these specifics, the Commissioner is left to opine that that part of the charge appears not to be appropriate.

Regarding the additional $6.56 ($75 - 68.44), the Commissioner has the following comments. In Advisory Opinion 97-013, the Secretary of State's Office argued in support of various components of the fee it assessed for making copies. Of relevance to this opinion, the Deputy Secretary wrote:

Administrative charges on VR [voter registration] orders are averaged at one hour at $18.50....This includes a Clerk Typist 2 in Fiscal Services who opens and receives the order; the Management Analyst 2 who assists the customer by providing information on products, fees, procedures for obtaining an order and mails the order out; and the Computer Services employee who actually produces the specific VR lists ordered....The time spent by each employee is allocated as 20 minutes each per order, which totals $18.63 per hour.

The Commissioner wrote:

The relevant language in Minnesota Rules Section 1205.0300 provides that a government entity may charge the cost of labor required to prepare the copies. It is the Commissioner's understanding that "preparing the copies" means just that, the actual act of preparing the copies. Therefore, of the cost-of-labor information provided by the Secretary of State's office, it appears the only appropriate charge would be that of the computer services employee who "actually produces the specific VR lists ordered." According to Ms. Voss' letter, that person's salary and benefits total $13.52 per hour. Thus, if it takes that employee 20 minutes to produce the order, the cost would be approximately $4.51 (20 minutes of time at $13.52 per hour).

As the Commissioner discussed in 97-013, he does not believe it is appropriate for the District to assess a fee for sending the data, invoicing the data, or crediting "it to accounts receivable." Ms. Wallner and Mr. Long also stated that the secretarial/accounting clerk "compiles" the data; it is not clear what that means. Thus, of the $6.56 portion of the $75 fee, the Commissioner can determine only that the $1.62 for a cd-rom and mailing is allowable.

Two additional notes are in order. One relates to the way Mr. Rodenhiser phrased his directory information requests. In his request for information about both parents and students, he asked for specific directory information and then asked also for "any other readily available directory information." In making his data request, Mr. Rodenhiser, to the extent possible, needed to be specific about what data he was seeking. In the Commissioner's mind, the final phrase of his request is not clear. For the District's part, if it did not understand his request, it should have asked for clarification. The point is that both parties in data practices matters have certain obligations.

Finally, the Commissioner notes that the District's "Regulation 801" entitled, "Community Access to Student Directory Information (801.2R)," states, "The requestor will need to specify the intended use and will need to sign a statement that the information will only be used for the designated purpose and not shared with others." The Commissioner reminds his readers that pursuant to section 13.05, subdivision 12, "Unless specifically authorized by statute, government entities may not require persons to...state a reason for, or justify a request to gain access to public government data."


Opinion:

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

  1. Pursuant to Minnesota Statutes, Chapter 13, Independent School District 272, Eden Prairie, responded in a timely manner to both an October 6, 2003, request and a November 3, 2003, request for information for costs relating to directory information files.
  2. Independent School District 272's (Eden Prairie) charge of $75 per "data file" does not appear to be allowable under Minnesota Statutes, Chapter 13, because the District did not meet the burden of establishing how the fee represents that which is statutorily permitted.

Signed:

Brian J. Lamb
Commissioner

Dated: January 23, 2004