FYI - January 2018

FYi Newsletter – From the Data Practices Office at the Department of Administration

JANUARY  2018     

Advisory Opinion Update

Student Audio Recording Redaction

In Opinion 17-010, a school district asked whether it had to provide a copy of an audio-recorded interview with a student to the student’s parent when the recording included educational data on multiple students. The Commissioner opined that the District should make every effort to redact the audiotape so that private educational data of other students is protected. However, if the District was unable to redact the tape, the Family Educational Rights and Privacy Act (FERPA) required the District to inform the parent of the specific information about the parent’s student.

Public Official Complaint Data

In Opinion 18-001, a state agency asked about the classification of data in an arbitrator’s order reversing all discipline of a public official. The Commissioner opined that Minn. Stat. § 13.43, subd. 2(e) classified the data as public. Regardless of whether there has been a final disposition of disciplinary action, all data (except for other not public data, e.g., private personnel data) about a complaint against a state-level public official become public upon completion of an investigation, or if the employee is terminated or resigns while the complaint is pending.

Case Law Update

In Peterson v. Martinez, et al., A17-0355 (Minn. Ct. App. Dec. 18, 2017), a data requester/licensee that was subject of an active investigation of a complaint was required to undergo a mental and physical examination through a private contractor. The resulting summary report by the contractor was distributed to both the licensee and the licensing agency, which used it as the basis for possible further discipline. Subsequently, the licensee made a data request to both the contractor and licensing agency for the “raw data” that had been the basis for the report. Neither party provided the data in question; the licensing agency because it did not maintain the data, and the private contractor because Minn. Stat. § 13.41, subd. 4 classifies active investigative data related to a complaint as confidential. The licensee sued, citing violations of the Data Practices Act and the Official Records Act.

Ruling in favor of the licensing agency and contractor, the court held that because the licensing authority’s investigation was based on the contractor’s summary report and not the raw data, the Official Records Act did not require it to maintain the raw data. Moreover, the court reiterated that nothing in the Data Practices Act requires government entities to obtain data from their private contractors in response to a data request. Requests for data held by a private contractor should be directed to the private contractor, and “[if] a private [contractor] fails to comply with the [Act], the remedy is against the private [contractor].”  Finally, because the raw data were data "created and maintained" as part of an active investigation, it was properly classified as confidential at the private contractor.

Upcoming DPO Workshops

There are currently no DPO workshops open for registration, but check regularly for details as our 2018 workshop schedule becomes available!