source: Caselaw Access Project

author: /s/Alan C. Page Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Bruce C. BROMANDER, a Minnesota Attorney, Registration No. 11800.
    No. A08-844.
    Supreme Court of Minnesota.
    June 10, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Bruce C. Bromander committed professional misconduct warranting public discipline, namely, engaging in the practice of law while on restricted status for failing to submit the affidavits of continuing legal education (CLE) compliance required by Rule 9 of the Rules of the Minnesota State Board of Continuing Legal Education, and making false or misleading statements regarding the status of his license to practice law, in violation of Rules 5.5(a), 5.5(b)(2), and 8.4(c), Minn. R. Prof. Conduct (MRPC).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director under which they jointly recommend that the appropriate discipline is a public reprimand and two years of unsupervised probation.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Bruce C. Bromander is publicly reprimanded and placed on two years of unsupervised probation, effective as of the date of filing of this order, subject to the following terms and conditions:

(a)Respondent shall cooperate with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(c) Respondent shall abide by the Rules of the Minnesota State Board of Continuing Legal Education.
(d) Beginning on January 2, 2009, and each July 1 and January 2 thereafter until the end of the period of probation, respondent shall submit a letter to the Director listing all continuing legal education classes taken by respondent in the preceding six months. Such letter will specify the name of the course, the course sponsor, the date taken, and the number of credits sought.

Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Alan C. Page Associate Justice


text:
    In re Petition for Immediate Transfer to Disability Status of Diana Lynn BRENNAN, a Minnesota Attorney, Registration No. 198468.
    No. A08-894.
    Supreme Court of Minnesota.
    June 10, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility and respondent Diana Lynn Brennan have entered into a stipulation for transfer of respondent to disability inactive status under Rule 28(a), Rules on Lawyers Professional Responsibility (RLPR), without further proceedings. The stipulation and a petition for transfer to disability inactive status have been filed in the above-entitled matter. Respondent is not currently practicing law.

The court has reviewed the petition and stipulation and concludes that transfer to disability inactive status is appropriate.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that, effective immediately, respondent Diana Lynn Brennan is transferred to disability inactive status under Rule 28, RLPR. During the period that respondent is on disability inactive status, respondent may not render legal advice, discuss legal matters with clients, or otherwise engage in the practice of law. Should respondent petition for reinstatement under Rule 18 and 28(d), RLPR, respondent shall be required to establish through expert psychological or psychiatric evidence that she has undergone treatment and is psychologically fit to resume the practice of law.

BY THE COURT:

/s/Alan C. Page Associate Justice


author: HALBROOKS, Judge.

text:
    STATE of Minnesota, Respondent, v. Denise M. POETSCHKE, Appellant.
    No. A07-1323.
    Court of Appeals of Minnesota.
    June 10, 2008.

      Lori Swanson, Attorney General, St. Paul, MN; and Douglas L. Johnson, City of Coon Rapids, Assistant City Attorney, Coon Rapids, MN, for respondent.
    Faison T. Sessoms, Jr., Minneapolis, MN, for appellant.
    Considered and decided by SCHELLHAS, Presiding Judge; KLAPHAKE, Judge; and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant Denise M. Poetschke challenges her conviction of third-degree driving while impaired (DWI) in violation of Minn.Stat. § 169A.20, subd. 1(1), (5) (2004). Appellant argues that the district court erred in denying her motion to suppress her medical records on the basis of her physician-patient privilege. Because appellant did not waive her physician-patient privilege and because the implied-consent statute does not overcome this privilege, we reverse.

FACTS

This appeal arises from appellant’s conviction following a stipulated-facts Lothen-bach procedure. Appellant was involved in a single-vehicle accident in Coon Rapids on February 20, 2006. Coon Rapids Police Officer Pantelis responded to the accident scene. When Officer Pantelis approached the vehicle, appellant was in the driver’s seat, and he saw that her eyes were bloodshot and watery. Appellant was unable to provide proof of insurance and appeared to the officer to be dazed and confused. Officer Pantelis also detected the odor of alcohol. He conducted a preliminary breath test, which appellant failed.

Because appellant was injured in the accident, an ambulance was called. Before the ambulance arrived, Officer Pantelis read her the implied-consent advisory, and appellant agreed to submit to testing. The ambulance took appellant to Mercy Hospital, where her blood was drawn as part of the diagnosis of and treatment for her injuries. Officer Pantelis testified that he asked appellant if she were willing to take a blood test because she was unable to take a breath test due to her injuries. Appellant gave her consent to a blood test.

Appellant was treated in the hospital emergency room and then taken for x-rays. Officer Pantelis subsequently asked her if she were still willing to provide a blood sample. When appellant said that she was willing, Officer Pantelis directed a medical technician to draw a second blood sample. But as a result of her injuries, appellant’s veins had collapsed; despite multiple attempts, the medical technician was unable to get a second blood sample. Officer Pantelis subsequently discarded the implied-eonsent-advisory form because he believed that he could not pursue DWI charges without the blood sample.

On March 6, 2006, Coon Rapids police obtained a search warrant for appellant’s medical records and the blood sample taken by the hospital. Detective Westburg of the Coon Rapids Police Department gave Mercy Hospital the search warrant and was informed that it would take a day to obtain the records. When Detective West-burg returned, he was told that the hospital had destroyed the blood sample, but he was given records relating to appellant’s medical treatment. The records showed that appellant’s alcohol concentration was .152 when tested on February 20, 2006. Appellant was charged with two counts of third-degree DWI in violation of Minn. Stat. § 169A.20, subd. 1(1), (5) (2004); one count of violation of a restricted driver’s license in violation of Minn.Stat. § 171.09(b)(1) (2004); and one count of operating a motor vehicle without proof of insurance in violation of Minn.Stat. § 169.791, subd. 2 (2004).

Appellant moved to suppress her blood-test results and argued at an omnibus hearing on September 26, 2006, that use of the test results violated her physician-patient privilege. The district court denied appellant’s motion. Appellant waived her right to a jury trial and proceeded to trial on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). Appellant was found guilty of all charges and sentenced to 365 days in jail, with 335 days stayed for four years and the executed time to be spent on home electronic monitoring. In addition, appellant was ordered to pay a $50 fine. This appeal follows.

ISSUE

Did the district court err in denying appellant’s motion to suppress her blood-test results?

ANALYSIS

Appellant argues that the records of the blood test taken at Mercy Hospital are inadmissible in her criminal prosecution because she did not waive her physician-patient privilege concerning the test results. The district court disagreed with appellant’s argument and concluded that because appellant gave oral consent to a second blood test that was not rescinded, she waived the privilege.

In reviewing a pretrial order denying a motion to suppress evidence when the underlying facts are not in dispute, an appellate court may conduct an independent review and determine, as a matter of law, if the district court erred in refusing to suppress the evidence. State v. Heaney, 689 N.W.2d 168, 171 (Minn.2004). The construction of statutes and rules as well as the existence of a privilege are questions of law, which an appellate court reviews de novo. Id.

Minnesota’s physician-patient privilege has its roots in Minn.Stat. § 595.02, subd. 1(d) (2004). Id. at 173. The statute states that

[a] licensed physician or surgeon, dentist, or chiropractor shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity; after the decease of the patient, in an action to recover insurance benefits, where the insurance has been in existence two years or more, the beneficiaries shall be deemed to be the personal representatives of the deceased person for the purpose of waiving this privilege, and no oral or written waiver of the privilege shall have any binding force or effect except when made upon the trial or examination where the evidence is offered or received.

Minn.Stat. § 595.02, subd. 1(d). “The purpose of the privilege is to encourage patients’ full disclosure of information, which will enable medical providers to extend the best medical care possible.” State v. Gillespie, 710 N.W.2d 289, 297 (Minn.App.2006), review denied (Minn. May 16, 2006). Designed solely for the protection of the patient and his or her treatment, a party may assert the privilege to prohibit access to medical records as well as to the medical professionals who provide treatment. Id.; see also Muller v. Rogers, 534 N.W.2d 724, 727 (Minn.App.1995) (stating that a party is entitled to assert the physician-patient privilege to limit discovery into medical records). “Unlike other rules of evidence that are concerned solely with the reliability of evidence and its ability to guide the court to the truth, privileges are an impediment to truth-finding. They are created to substantively protect a particular type of relationship deemed valuable to society in general.” Heaney, 689 N.W.2d at 174 (citation omitted). In creating a statutory privilege, the legislature has made a decision to protect a policy that it deems important at the expense of accurate answers to fact questions. Id.

The state concedes that medical records traditionally fall within the scope of the physician-patient privilege. See, e.g., State v. Blom, 682 N.W.2d 578, 617 (Minn.2004) (stating that medical records generally fall under the physician-patient privilege but that a defendant can also waive this privilege); State v. Staat, 291 Minn. 394, 398-400, 192 N.W.2d 192, 196-97 (1971) (discussing the statutory requirements to determine whether the physician-patient privilege applies to a particular piece of evidence). Because there is no challenge to the application of the physician-patient privilege, the focus of our review is whether appellant’s implied consent or oral consent to a second blood test waived that privilege. If appellant waived the privilege, the district court properly denied appellant’s motion to suppress.

Appellant argues that her consent to a second blood test did not waive her physician-patient privilege to the first test results. Based on the language of Heaney, appellant contends that her physician-patient privilege is not overcome by the implied-consent law. The district court disagreed, stating that because appellant “did not withdraw her consent although she was conscious and alert at the hospital and therefore capable of indicating her wishes[J” she implicitly waived the privilege by her actions. In conducting its analysis, the district court distinguished Heaney from the present case and noted a series of unpublished cases from this court to support its conclusion that appellant waived her privilege.

In Heaney, the defendant was involved in a single-vehicle accident in Houston County. 689 N.W.2d at 170. Heaney admitted that he and his friends had been drinking earlier that evening, and the responding officer administered a portable breath test that Heaney failed. Id. Because he sustained injuries in the accident, Heaney was transported to the closest available hospital, which happened to be in LaCrosse, Wisconsin. Id.

At the hospital, Heaney’s blood was drawn within two hours after the accident. Id. at 171. A second Minnesota officer arrived and read Heaney the implied-consent advisory, including the portion that indicated that the officer had probable cause to believe that Heaney had violated Minnesota’s criminal-vehicular-homicide law. Id. at 170-71. In response, Heaney initially consented to give a blood sample but subsequently withdrew his consent. Id. at 171. Despite his refusal to give the sample, the officer asserted that he had a right to a blood sample. Id. Heaney eventually agreed to a urine test that showed an alcohol concentration of .08 approximately three hours after the accident. Id.

The Minnesota officer who administered the implied consent later learned of the blood test taken by the hospital. Id. Following the statutory procedures required in Wisconsin, the officer completed a request for production of the blood test and medical records and filed the request in the LaCrosse County District Court. Id. The LaCrosse County District Court issued a subpoena for Heaney’s medical records and the blood sample. Id. After returning to the hospital, the officer was given Heaney’s blood and medical records, which showed Heaney had an alcohol concentration of .144 within two hours after the accident. Id.

Heaney was subsequently charged in Houston County with criminal vehicular operation resulting in death and criminal vehicular operation resulting in substantial bodily harm. Id. Both crimes required proof that the defendant was operating a vehicle with an alcohol concentration of .10 or more within two hours after driving. Id.; see also Minn.Stat. § 609.21, subds. 1, 2 (2002). Heaney sought to suppress the alcohol-concentration evidence on the ground that it was obtained in violation of the Minnesota physician-patient-privilege statute. Id. The district court granted Heaney’s motion to suppress, and the state appealed to this court. We held that, under a choice-of-law analysis, the district court correctly applied Minnesota’s physician-patient-privilege statute as opposed to the Wisconsin law. Id.; see also State v. Heaney, 676 N.W.2d 698 (Minn.App.2004), rev’d, 689 N.W.2d 168 (Minn.2004). The state petitioned the Minnesota Supreme Court for review, arguing that the evidence was properly obtained under Wisconsin law and should be admissible for use by the prosecution in Minnesota. Heaney, 689 N.W.2d at 171. The supreme court granted review.

The supreme court examined the relevant Minnesota and Wisconsin privilege statutes and concluded that the “significant relationship with the communication” approach from the Restatement (Second) of Conflict of Laws § 139 should apply to the choice-of-law analysis, which led to application of the Wisconsin statute. Id. at 175-77 (quotation marks omitted). Because the Wisconsin privilege statute contains an exception for the type of evidence at issue that the Minnesota statute does not, the supreme court concluded that the alcohol-concentration results were admissible. Id. at 173,177.

But the supreme court clearly stated that “under Minnesota’s physician-patient privilege statute, Heaney’s blood-alcohol evidence from the hospital would be inadmissible.” Id. at 173. While not essential to the holding in Heaney, we find the conclusion of the supreme court applicable and persuasive here. See Brink v. Smith Cos. Constr., Inc., 703 N.W.2d 871, 877-78 (Minn.App.2005) (“Judicial dictum involves a court’s expression of its opinion on a question directly involved and argued by counsel though not entirely necessary to the decision” and is “entitled to much greater weight than mere obiter dictum and should not be lightly disregarded.” (quotations and citations omitted)), review denied (Minn. Dec. 21, 2005). In contrast to its Wisconsin counterpart, Minn.Stat. § 592.02, subd. 1(d), contains no exception for alcohol-concentration test results. Compare Wis. Stat. § 905.04(4)(f), with Minn.Stat. § 592.02, subd. 1(d). Minnesota law establishes that the only testing impliedly consented to by a driver is one administered at the direction of a peace officer. Minn.Stat. § 169A.51, subd. 1(a) (2004). Due to appellant’s physical condition, there was no such test successfully administered here.

The state argues that Heaney is distinguishable because, in contrast to this case, the defendant in Heaney later withdrew his consent. 689 N.W.2d at 171. But the supreme court makes no mention of any relevance attached to the defendant’s subsequent withdrawal of consent in applying Minnesota’s physician-patient-privilege law. Id. at 172-77. Instead, the case clearly states that when the privilege applies, it acts to exclude the evidence, despite the fact that it may act as “an impediment to truth-finding.” Id. at 174 (citing

Staat, 291 Minn, at 397, 192 N.W.2d at 196). Unlike the Wisconsin physician-patient-privilege statute, Minnesota’s law has no exception for alcohol-concentration results. And while the state argues that appellant’s conduct creates an exception, without language in the statute to support that argument, it is best left for the legislature. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (“The function of the court of appeals is limited to identifying errors and then correcting them.”).

The state asks this court to look at the purpose of the implied-consent statute in light of the privilege’s purpose. Arguing that appellant’s actions imply a waiver, the state suggests that it is unreasonable for appellant to suggest that release of her medical results here inhibited her ability to be candid with her physician. But appellant has not waived the privilege by placing her medical condition at issue. See State v. Gore, 451 N.W.2d 313, 318 (Minn.1990) (a defendant who testifies about his medical condition impliedly waives the ability to object to physician’s conflicting testimony on the basis of physician-patient privilege); Younggren v. Younggren, 556 N.W.2d 228, 233 (Minn.App.1996) (a party can waive the physician-patient privilege by placing one’s medical condition in controversy); State v. Kunz, 457 N.W.2d 265, 267 (Minn.App.1990) (the consented-to presence of a police officer during a medical examination rendered observations made by the physician non-privileged), review denied (Minn. Aug. 23, 1990). Admittedly, appellant’s physical inability to provide a second blood sample is a result of her own conduct, but the legislature has created a clear policy that prefers protection of privacy over truth-finding. Heaney, 689 N.W.2d at 174. As an error-correcting court, it is not for us to conclude that the policy is improper. Sefkow, 427 N.W.2d at 210.

DECISION

The Minnesota physician-patient-privilege statute contains no exception for use of alcohol-concentration test results in a criminal prosecution. Because appellant did not waive her physician-patient privilege, the alcohol-concentration test result taken in the course of appellant’s medical treatment and not at the request of the officer pursuant to Minn.Stat. § 169A.51, subd. 1(a) (2004), is not admissible in her criminal prosecution. The district court therefore erred in denying appellant’s motion to suppress.

Reversed.

      . Appellant’s driver’s license was revoked on January 30, 1999, for test refusal. She was convicted of test refusal on April 21, 1999. As a result of her conviction, her driver’s license at the time of this accident included a restriction that any use of alcohol or drugs invalidated the license.

        . The district court cited Lundebreck v. Comm’rofPub. Safety, No. C8-01-164 (Minn.App. Sept.25, 2001), and State v. Haugen, No. C7-99-1739 (Minn.App. June 27, 2000), in support of its decision. As unpublished cases, they are not precedential. Minn.Stat. § 480A.08, subd. 3(c) (2006).

      . The Wisconsin statute stated "[t]here is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide.” Wis. Stat. § 905.04(4)(d) (2001-02). In addition, the Wisconsin statute had a provision which excepts alcohol-concentration test results: “There is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration.” Id., (4)(£).


author: MUEHLBERG, Judge.

text:
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 292, Respondent (A07-1388), Appellant (A07-1418), v. CITY OF ST. CLOUD, Defendant (A07-1388), Respondent (A07-1418), Design Electric, Inc., intervenor/defendant, Appellant (A07-1388), Respondent (A07-1418).
    Nos. A07-1388, A07-1418.
    Court of Appeals of Minnesota.
    June 10, 2008.

      Marshall H. Tanick, Teresa J. Ayling, Mansfield Tanick & Cohen, Minneapolis, MN, for respondent/appellant International Brotherhood of Electrical Workers.
    Patricia Y. Beety, League of Minnesota Cities, St. Paul, MN, for respondent City of St. Cloud.
    Douglas P. Seaton, Alec J. Beck, Sara G. Sidwell, Seaton, Beck & Peters, P.A., Minneapolis, MN, for appellant/respondent Design Electric, Inc.
    Considered and decided by HUDSON, Presiding Judge; CONNOLLY, Judge; and MUEHLBERG, Judge.
   OPINION

MUEHLBERG, Judge.

This case is a consolidation of two appeals. In the first, Design Electric, Inc. (Design) appeals from a district court order granting summary judgment in favor of International Brotherhood of Electrical Workers, Local No. 292 (IBEW). Design argues that the district court erred in its application of Minn.Stat. § 13.43 (2006) to the personnel data requested by IBEW and asks this court to conclude that IBEW is barred by Minn.Stat. § 13.43, subd. 6 from receiving the requested data. In the district court, the City of St. Cloud (City) took the same position as Design and opposed IBEW’s motion for summary judgment. Because the City has not filed its own brief on the issue of summary judgment and is not adverse to Design, the City is not a respondent to Design’s appeal.

In the second appeal, IBEW challenges the portion of the summary-judgment order that awarded attorney fees in the amount of $500 payable by the City. IBEW also appeals from the district court’s denial of its motion seeking additional attorney fees from both Design and the City. IBEW asks this court to conclude that it is entitled to receive attorney fees and award the requested $35,042.10 in fees. Both Design and the City oppose IBEW’s appeal and are respondents on those issues. In addition to these consolidated appeals, IBEW moves to supplement the record in the consolidated appeal. Both Design and the City have opposed IBEW’s motion.

Because the payroll data requested by IBEW is public personnel data that IBEW is not prohibited from acquiring, we affirm the order granting summary judgment in part. But because the home addresses of Design’s employees that are included in the data requested by IBEW are not public personnel data as defined by MinmStat. § 13.43, subd. 2, we reverse that portion of the order granting summary judgment. The district court did not abuse its discretion in awarding nominal attorney fees against the City, and although there is legal authority for awarding attorney fees against Design in this matter, we affirm the district court’s exercise of discretion in refusing to do so. Because IBEW’s request to supplement the record is improper, we deny its motion.

FACTS

This appeal arises from a grant of summary judgment, and the facts are not in dispute. Design is a commercial electrical contractor with its principal place of business in Stearns County, Minnesota. In 2006, Design was hired by the City to perform subcontracting work on the East St. Germaine Utility Project (Utility Project). Pursuant to the Minnesota Prevailing Wage Law, Minn.Stat. § 177.41 (2006), Design was required by the specifications of the Utility Project to pay prevailing wages to its employees. The prevailing wage is certified by the Minnesota Department of Labor and Industry and is the most frequently occurring wage paid to the largest number of workers in a given labor classification. See Minn.Stat. §§ 177.41, subd. 4,177.44, subds. 3, 4 (2006).

After Design completed its work on the Utility Project, the City requested the certified payroll records to confirm that Design employees were paid prevailing wages. Design provided these records, which included individual employee names, addresses, telephone numbers, social security numbers, retirement savings, tax exemptions, wage and benefit rates, tax with-holdings, hours and days worked, and identifying information of gender, race, age and national origin. In anticipation of litigation, Design marked the records “confidential” as constituting “trade secrets.”

IBEW is a labor union whose members are electricians living in various parts of Minnesota, but it does not represent any of Design’s employees. IBEW requested that the City provide copies of Design’s certified payroll records on November 21, 2006. The City denied IBEW’s request and responded that because Design had marked the records “confidential” it could not produce those documents. IBEW made two subsequent requests for the documents on December 28, 2006 and February 8, 2007. Both requests were denied by the City.

IBEW filed this lawsuit against the City on February 20, 2007, following the City’s refusal to provide the payroll records. IBEW claimed that the payroll records were public under the Minnesota Government Data Practices Act, Minn.Stat. §§ 13.001-.90 (2006). In its answer to IBEW’s complaint, the City objected to disclosure of the payroll records based on Design’s assertions of confidentiality and the City’s position that the payroll records are nonpublic. IBEW moved for summary judgment on April 6, 2007. On that same day, Design moved to intervene. The district court granted Design’s motion to intervene as a matter of right and deferred ruling on IBEW’s summary judgment motion.

The district court heard arguments on IBEW’s motion and both Design and the City argued against summary judgment. Although Design initially opposed release of the payroll records because they were claimed to be confidential trade secrets, in their arguments in opposition to IBEW’s motion, Design abandoned its trade secret assertion and argued that the payroll records are “personnel data” as defined by Minn.Stat. § 13.43. Because IBEW is a labor union, Design asserted that Minn. Stat. § 13.43, subd. 6 limits IBEW’s access to personnel data and barred it from receiving these payroll records absent specific purposes enumerated in subdivision 6. Design argued that IBEW had not asserted any of these specific purposes and could not acquire the payroll records.

After deliberation, the district court granted summary judgment in favor of IBEW on May 24, 2007, and ordered the City to release the payroll records to IBEW. In addition, the district court awarded IBEW $500 in attorney fees, payable by the City. Noting the “difficult position” the City was put in having been subjected to a previous lawsuit by Design based on the same assertion of trade secrets, the district court concluded there was initially a “legitimate reason for the City to withhold the information.” But because Design later abandoned its trade-secret assertion, the district court concluded the City should have disclosed the information following the summary judgment hearing and stated that because of this violation it was “appropriate” to award the $500 in attorney fees.

Design filed a motion on May 28, 2007 to stay the district court’s order to release the payroll records pending appeal, and the district court granted the stay. Then on June 20, 2007, IBEW filed a motion seeking attorney fees pursuant to Minn. Stat. § 13.08, subd. 4, and included affidavits from trial counsel and an expert witness pertaining to the $35,042.10 in fees requested. Both Design and the City opposed this motion, and the district court denied IBEW’s request, but maintained the $500 in attorney fees previously ordered. Design appeals from the order granting summary judgment, and IBEW appeals from the order denying attorney fees.

ISSUES

I. Did the district court err in granting summary judgment in favor of IBEW on the basis that Minn.Stat. § 13.43, subd. 6 (2006) does not limit a labor union’s ability to have access to public personnel data as defined by Minn.Stat. § 13.43 (2006)?

II. Did the district court err in denying IBEW’s motion seeking attorney fees against both Design and the City?

III. Should IBEW be permitted to supplement the record?

ANALYSIS

I.

Design argues that the district court erred in its application of Minn.Stat. § 13.43 (2006) and asks this court to reverse the order granting summary judgment in favor of IBEW. Design asserts that Minn.Stat. § 13.43, subd. 6 is a limitation on access to public data by labor unions. Design suggests that Minn.Stat. § 13.43, subd. 6 lists specific purposes that must be asserted before a labor union can have access to any personnel data. Because IBEW has not requested access for the specific purposes listed in subdivision 6, Design argues IBEW is barred from requesting the payroll records.

On appeal from summary judgment, an appellate court addresses two questions: (1)whether there are any genuine issues of material fact; and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, which is reviewed de novo by an appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

The Minnesota Government Data Practices Act (MGDPA), Minn.Stat. §§ 13.001-13.90 (2006)

regulates the collection, creation, storage, maintenance, dissemination, and access to government data in government entities. It establishes a presumption that government data are public and are accessible by the public for both inspection and copying unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.

Minn.Stat. § 13.01, subd. 3. The MGDPA represents a “fundamental commitment to making the operations of our public institutions open to the public.” Prairie Island Indian Cmty. v. Minn. Dept. of Pub. Safety, 658 N.W.2d 876, 883-84 (Minn.App.2003). Because of this commitment to transparency in our public institutions, courts construe the MGDPA “in favor of public access.” Id. at 884.

Despite the general presumption that government data is public, the MGDPA establishes that not all government data is accessible to the public. Minn.Stat. § 13.43 establishes a statutory exception to the general presumption of public access for “personnel data.” As defined by section 13.43, “personnel data” is “data on individuals collected because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity.” Id., subd. 1. Minn.Stat. § 13.43, subd. 2, specifies the “personnel data” that is classified as public:

(1) name; employee identification number, which must not be the employee’s Social Security number; actual gross salary; salary range;' contract fees; actual gross pension; the value and nature of employer paid fringe benefits; and the basis for and the amount of any added remuneration, including expense reimbursement, in addition to salary;
(2) job title and bargaining unit; job description; education and training background; and previous work experience;
(3) date of first and last employment;
(4) the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action;
(5) the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body;
(6) the terms of any agreement settling any dispute arising out of an employment relationship, including a buyout agreement as defined in section 123B.143, subdivision 2, paragraph (a); except that the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money;
(7) work location; a work telephone number; badge number; and honors and awards received; and
(8) payroll time sheets or other comparable data that are only used to account for employee’s work time for payroll purposes, except to the extent that release of time sheet data would reveal the employee’s reasons for the use of sick or other medical leave or other not public data.

Id. “All other personnel data is private data on individuals but may be released pursuant to a court order.” Id., subd. 4. By the language of Minn.Stat. § 13.43, any personnel data that is not classified public and listed explicitly within subdivision 2 is presumed to be private. Compare id., subd. 2 with id., subd. 4.

We note that this analysis of Minn.Stat. § 13.43 may be perceived to conflict with the reasoning in Star Tribune v. City of St. Paul, 660 N.W.2d 821 (Minn.App.2003). The disputed issue in Star Tribune was whether data collected on traffic stops was comprehensive law enforcement data, made public under Minn.Stat. § 13.82 (2002), or private personnel data under Minn.Stat. § 13.43, subd. 4 (2002). 660 N.W.2d at 824. Our decision in Star Tribune determined that the data was private personnel data as defined by Minn.Stat. § 13.43, subd. 4 (2002), id. at 827, and we do not disagree with that conclusion. But to the extent that Star Tribune can be read to place the emphasis on whether an individual is the subject of the data in determining whether or not it is “personnel data,” we find that analysis to misapply the language of Minn.Stat. § 13.43. In any event, Star Tribune deals with the relationship between Minn.Stat. § 13.82 and Minn.Stat. § 13.43, subd. 4. The present case deals with the relationship among Minn.Stat. § 13.43, subds. 2, 4, 5a and 6.

Here, the district court found that all of the payroll data IBEW requested is public personnel data as defined by Minn.Stat. § 13.43, subd. 2. Because a labor union is a “person” as defined by the MGDPA, the district court concluded that IBEW could have access to the payroll records. See Minn.Stat. § 13.02, subd. 10 (defining “person” for purposes of the MGDPA as “any individual, partnership, corporation, association, business trust, or a legal representative of an organization”). We agree that IBEW is a “person” under that definition in the MGDPA and as a result, may have access to any personnel data that is public as listed in Minn.Stat. § 13.43, subd. 2. The payroll records IBEW seeks, with the exception of the home addresses, as discussed below, fit within the confines of the personnel data that is classified public by subdivision 2 and should be released to IBEW.

In reaching its conclusion, the district court addressed Design’s argument that the home addresses in the payroll records cannot be released. The district court cited Minn.Stat. § 13.43, subd. 5a and stated that the only data that is prohibited from being released are home addresses “with respect to employees working in jails, prisons or other corrections facilities to inmates and certain others associated with the corrections facility.” According to the district court, this limited exclusion “establishes that home addresses of other employees not excluded are public information.”

But we believe this conclusion misconstrues the statute and its explicitly limited amount of personnel data that is made public. Minn.Stat. § 13.43, subd. 2 describes various data that is classified as public personnel data, and home addresses are not included in the enumerated data made public in subdivision 2. In light of the language in Minn.Stat. § 13.43, subd. 4 that “[a]ll other personnel data is private data on individuals,” we conclude that home addresses are not public personnel data and the district court erred in its conclusion. The district court is correct that Minn.Stat. § 13.43, subd. 5a specifically mentions home addresses. But subdivision 5a specifically states:

Notwithstanding any other provision of this section, the following data relating to employees of a secure treatment facility defined in section 253B.02, subdivision 18a, employees of a state correctional facility, or employees of the Department of Corrections directly involved in supervision of offenders in the community, shall not be disclosed to facility patients, corrections inmates, or other individuals who facility or correction administrators reasonably believe will use the information to harass, intimidate, or assault any of these employees: place where previous education or training occurred; place of prior employment; and payroll timesheets or other comparable data, to the extent that disclosure of payroll timesheets or other comparable data may disclose future work assignments, home address or telephone number, the location of an employee during nonwork hours, or the location of an employee’s immediate family members.

Id. (emphasis added). The language of subdivision 5a makes payroll timesheets or comparable data that would otherwise be public into private data to the extent they would disclose home addresses to certain people requesting the data for improper purposes. Id. Because home addresses are not listed in the personnel data that is public in subdivision 2, home addresses are made private by subdivision 4 and should be redacted from personnel data disclosed to IBEW.

But Design asserts that even if the payroll records are public, Minn.Stat. § 13.43, subd. 6 acts as a limitation on a labor union’s ability to acquire what is otherwise public personnel data. Design argues that it was error for the district court to conclude that subdivision 6 is not a limitation on a labor union’s ability to access personnel data unless the labor union asserts a specific purpose in requesting the data as listed in the statute.

Minn.Stat. § 13.43, subd. 6 concerns access to personnel data by labor organizations. It states:

Personnel data may be disseminated to labor organizations to the extent that the responsible authority determines that the dissemination is necessary to conduct elections, notify employees of fair share fee assessments, and implement the provisions of chapters 179 and 179A. Personnel data shall be disseminated to labor organizations and to the Bureau of Mediation Services to the extent the dissemination is ordered or authorized by the commissioner of the Bureau of Mediation Services.

Minn.Stat. § 13.43, subd. 6. The language of this subdivision allows a responsible authority or government entity to disseminate personnel data to a labor union for the purposes enumerated. If read as Design suggests, subdivision 6 would conflict with the broad presumption of public access throughout the MGDPA and conflict with the ability of a labor union, as a “person,” to receive data that is otherwise public under Minn.Stat. § 13.43, subd. 2. Where two statutory provisions conflict, the two “shall be construed, if possible, so that effect may be given to both.” Minn. Stat. § 645.26, subd. 1 (2006).

The district court concluded that appellant’s argument would create an absurd result and allow “an employee of the labor union, or any other person [to] simply request the documents in his or her name as an individual in order to obtain the documents, and then provide them to the labor union.” But under appellant’s reading of Minn.Stat. § 13.43, the labor union itself, or its legal representative, could not make that same request. An examination of the history of subdivision 6 demonstrates that appellant’s argument lacks merit and that the district court was correct to conclude that Minn.Stat. § 13.43, subd. 6 is not a limitation on a labor union’s ability to have access to personnel data.

The legislative history of Minn.Stat. § 13.43, subd. 6 is discussed in a 1982 William Mitchell Law Review article. See Donald A. Gemberling & Gary A. Weiss-man, Data Privacy: Everything You Wanted to Know About the Minnesota Government Data Practices Act — From “A” to “Z” 8 Wm. Mitchell L.Rev. 573, 645 (1982). Originally in the MGDPA, most personnel data was classified as private. See 1979 Minn. Laws ch. 328, § 17, at 919-20: Gemberling & Weissman, Data Privacy, supra, at 645. A series of conflicts between labor unions citing their rights under the Public Employment Labor Relations Act (PELRA), and employers asserting their rights to keep personnel data private caused the Minnesota Legislature to amend the personnel-data section of the MGDPA. Gemberling & Weissman, Data Privacy, supra, at 645; see also 1981 Minn. Laws ch. 311, § 13, at 1432 (currently codified at Minn.Stat. § 13.43, subd. 6). The amendment allowed a labor union to gain access to what was, at that point, private personnel data for the purposes of “conducting] elections, notifying] employees of fair share fee assessments, and implementing] the provisions of [PELRA].” 1982 Minn. Laws ch. 311, § 13, at 1432 (currently codified at Minn.Stat. § 13.43, subd. 6).

Read in the context of the rest of Minn. Stat. § 13.43, subdivision 6 acts as an expansion of a labor union’s ability to access personnel data, not a limitation as Design suggests. To implement the provisions of PELRA, subdivision 6 gives a labor union access to data that would otherwise be private. The subdivision was enacted to ensure that a labor union would not be barred from acquiring information that it needed to effectuate PELRA. Gemberling & Weissman, Data Privacy, supra, at 645. It is not a limitation on IBEW’s ability to access the payroll information, and Design’s argument was properly rejected by the district court. Although Minn.Stat. § 13.43, subd. 6 may allow a labor union to access otherwise private personnel data like the home addresses requested by IBEW, in our case the union has never requested these addresses for any of the purposes enumerated in subdivision 6, and so we decline to apply it to their request here. We hold that employees’ home addresses are not public personnel data under Minn.Stat. § 13.43, subd. 2 and may not be disclosed.

II.

IBEW appeals from the district court’s denial of its request for attorney fees beyond the $500 initially awarded in the district court’s order granting summary judgment. IBEW argues it was an abuse of discretion to deny its motion for attorney fees in the amount of $35,024.10 and asks this court to reverse the district court order and grant IBEW the requested fees against both the City and Design. An appellate court reviews a district court award or denial of attorney fees for an abuse of discretion. WDSI, Inc. v. County of Steele, 672 N.W.2d 617, 622 (Minn.App.2003). “A determination regarding attorney fees will rarely be overturned on appeal.” Id.

Generally, attorney fees are allowable if authorized by contract or in a statute. Id. The MGDPA provides that “any aggrieved person seeking to enforce the person’s rights under this chapter or obtain access to data may bring an action in district court to compel compliance with this chapter and may recover costs and disbursements, including reasonable attorney’s fees, as determined by the court.” Minn.Stat. § 13.08, subd. 4 (2006).

Here, the district court considered IBEW’s motion seeking attorney fees against the City following its order granting summary judgment. Although appellant asserts that the district court awarded these fees sua sponte, the record shows the district court awarded attorney fees because IBEW had included attorney fees and costs in the “relief requested” portion of the memorandum submitted in support of summary judgment. Appellant later filed a separate motion seeking attorney fees, but the district court denied that motion and affirmed the award from the summary judgment order, stating that “the City is not responsible for [IBEW’s] ‘reasonable attorney fees and costs.’ Rather, a limited attorney fee award should be assessed against the City.”

In support of the limited attorney fees awarded against the City, the district court stated that the trade-secret argument used to resist disclosure of the payroll records was presented by Design and not created by the City. This “put the City in a difficult position,” but “[s]hort of the City being more assertive in obtaining information from Design to support Design’s claim, this trade secret claim made it reasonable for the City to initially refuse to provide the information sought by [IBEW] until this trade secret claim could be verified one way or the other.” Because Design abandoned this claim, the original legitimate reason for the City to withhold the payroll records was no longer present, and the “City should have disclosed the information,” the district court held. Because the City failed to disclose the information following Design’s change in position, the district court concluded that a $500 limited attorney fee award was appropriate. The district court provided detailed reasons why a limited award is appropriate. These substantial reasons support the district court’s denial of additional fees, and we cannot say this is one of those rare situations involving attorney fees that warrants reversal on appeal. See WDSI, 672 N.W.2d at 622.

IBEW’s appeal also asks this court to award attorney fees payable by Design. “Under the MGDPA, a political subdivision may contract with a private party to perform any of its governmental functions. The private party then acts as a governmental entity, must comply with the requirements of the MGDPA, and is held liable for MGDPA violations.” Id. at 620 (citations omitted).

If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.

MinmStat. § 13.05, subd. 11(a) (2006). Here, Design contracted to perform a governmental function by participating in the construction of the Utility Project. See WDSI, 672 N.W.2d at 621 (holding that construction of a jail is a clear governmental function undertaken by a private party). By undertaking a governmental function, Design incurs liability for any and all of the remedies in Minn.Stat. § 13.08. But the district court in its discretion did not award attorney fees, despite the ability to do so. On this record, we find no abuse of discretion in denying IBEW’s request. See WDSI, 672 N.W.2d at 623 (holding where a party had a reasonable defense on the merits, made colorable arguments and the claims had a basis in fact, denial of attorney fees was appropriate).

III.

In addition to the previous substantive appeals, IBEW filed a motion on March 5, 2008 to supplement the record in this consolidated appeal. IBEW seeks to amend the record with certified payroll records from the City of St. Cloud and Stearns County, including two projects involving Design as the contractor. Both Design and the City oppose IBEW’s motion to supplement the record.

“The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ.App. P. 110.01. An appellate court may not base its decisions on matters outside the record on appeal and may not consider matters not produced and received in evidence below. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988). “However, when the evidence is documentary evidence of a conclusive nature (un-controverted) which supports the result obtained in the lower court,” this court may consider it. Peterson v. Johnson, 720 N.W.2d 833, 840 (Minn.App.2006) (quotation omitted). In general, new evidence may be introduced on appeal if it is (1) documentary; (2) essentially uncontrovert-ed; and (3) is not offered in support of a reversal. In re Risk Level Determination of C.M., 578 N.W.2d 391, 394 (MinmApp. 1998).

Here, IBEW proposes supplementing the record with payroll records similar to the ones requested by IBEW. But as Design argues, IBEW is attempting to impute motive by suggesting that Design did not object to the production of these supplemental records, and, therefore, Design has taken a legally unsupported stance here. Such an inference goes beyond the very limited basis for supplementing the record. In addition, supplemental information must be produced in support of the decision below. In re C.M., 578 N.W.2d at 394. But IBEW proposes to supplement the record in the consolidated appeal and not merely to supplement the district court’s grant of summary judgment in their favor. The inference suggested by this submission is that Design’s position in denying the payroll records is unsubstantiated and illogical, which is exactly IBEW’s argument for an award of attorney fees. As this is an inference that would support reversal of the district court, we decline to supplement the record with such information. See id.

DECISION

The data requested, with the exception of the home addresses, is public personnel data as defined by Minn.Stat. § 13.43 (2006). Because IBEW’s ability to access public personnel data is not limited by Minn.Stat. § 13.43, subd. 6 (2006), the district court correctly granted summary judgment in favor of IBEW on that issue. But data concerning home addresses of Design’s employees is not public personnel data, and the district court erred in its conclusion that Design must release that information. Instead, Design and the City must release the payroll records with home address information redacted from the data. There was no abuse of discretion in the district court’s award of $500 in attorney fees nor was there an abuse of discretion in the refusal to award additional fees. In addition, we deny IBEW’s motion to supplement the record.

Affirmed in part and reversed in part.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

      . Prevailing wages are required for all state-funded construction projects. Minn.Stat. §§ 177.41-177.44 (2006).

      . The Minnesota Department of Labor and Industry recognizes 131 separate job classes common to the construction industry. Prevailing Wage, http:Hw ork-place.doli.state.mn.us/prevwage/rates — set.php (last visited May 14, 2008).

      .In a previous dispute between IBEW and Design, the City produced similar payroll records despite Design's protests. The previous lawsuit was held moot because the City produced the documents before Design had filed its lawsuit seeking to prevent IBEW from receiving the records. See Design Electric, Inc. v. City of St. Cloud, No. C1-01-734 (Minn.App. Nov.13, 2001).

      . In the MGDPA, most government data is first classified into one of two categories: “data on individuals’’ or "data not on individuals.’’ Minn.Stat. § 13.02, subds. 4, 5 (2006). These categories are further divided into three subclasses. Data on individuals is divided into “public data on individuals,’’ "private data on individuals,’’ and “confidential data on individuals.” Id.., subds. 3, 12, 15. Data not on individuals is also divided into three subclasses: "public data not on individuals,” “nonpublic data,” and "protected nonpublic data.” Id., subds. 9, 13, 14.
      In general, "public data” is accessible to the public. Id., subds. 14, 15. "Private data on individuals” and "nonpublic data” is generally not accessible to the public, but is accessible to the subject of the data. Id., subds. 9, 12; see also Minn.Stat. § 13.04, subd. 3 (allowing the person who is the subject of public data on individuals or private data on individuals to have access to such data).

      . As discussed subsequently, there may be situations where a labor union may be able to acquire home addresses when the labor union has asserted certain purposes for requesting the data. See Minn.Stat. § 13.43, subd. 6. Because we have no such stated purpose here, we do not address that issue.


author: WRIGHT, Judge.

text:
    In the Matter of the EXPULSION OF N.Y.B., from Anoka-Hennepin Independent School District No. 11.
    No. A07-1277.
    Court of Appeals of Minnesota.
    June 10, 2008.

      Ann Marie Hanrahan, 3M Office of General Counsel; and Gail Chang-Bohr, Children’s Law Center of Minnesota; and J. David Prince, William Mitchell College of Law, St. Paul, MN; and Stephen Lucke, Karen Pogonowski, Dorsey & Whitney, Minneapolis, MN, for relator N.Y.B.
    Lori Swanson, Attorney General, Martha J. Casserly, St. Paul, MN, for respondent Department of Education.
    Stephen M. Knutson, Michelle D. Ken-ney, Knutson, Flynn & Deans, Mendota Heights, MN, for respondent Independent School District No. 11.
    Considered and decided by WRIGHT, Presiding Judge; ROSS, Judge; and COLLINS, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

WRIGHT, Judge.

Relator challenges the school board’s decision to expel her for one calendar year, arguing that (1) the school board’s decision is arbitrary and capricious and unsupported by substantial evidence and (2) relator was deprived of procedural due process. We remand.

FACTS

Before being expelled, relator N.Y.B. was a freshman at Coon Rapids High School (CRHS) in respondent Anoka-Hen-nepin Independent School District (the district). Sometime in late November or early December 2006, C.S., who also attended CRHS, made comments to other students about N.Y.B.’s racial heritage. During lunch in the school cafeteria on December 13, 2006, N.Y.B. confronted C.S. about rumors that she believed C.S. was spreading. A fight ensued, during which N.Y.B. broke a cafeteria tray over C.S.’s head. School staff promptly broke up the fight. While being escorted to the main office by a school official, N.Y.B. turned and ran toward C.S., who was being escorted in the opposite direction. As a result, an assistant principal physically restrained N.Y.B. to prevent the resumption of the fight. Another assistant principal immediately suspended N.Y.B. for ten days, pending expulsion. And on December 19, 2006, the principal recommended to the school board that N.Y.B. be expelled for violating the district’s physical-aggression policy.

In late January 2007, N.Y.B. and her attorney met with the principal and the district’s general counsel to discuss the pending disciplinary action. As a result of this meeting, N.Y.B.’s attorney understood that, if N.Y.B. opted for an evidentiary hearing before an independent hearing officer, the school board “would consider the findings and conclusions of the hearing officer in making its decision” but that it was highly unlikely that N.Y.B. or her attorney would be permitted to comment on the evidence adduced. N.Y.B.’s counsel further understood that, if N.Y.B. waived an evidentiary hearing, N.Y.B. and her attorney would “have the opportunity to present [their] position to the School Board and to request [the school board’s] consideration of that position in determining whether to expel [N.Y.B.] and the time period of any expulsion.” Apparently based on this understanding, N.Y.B. waived her right to an evidentiary hearing.

On February 12, 2007, the school board met to decide whether to expel N.Y.B. and, if so, the length of the expulsion. If meeting minutes were kept, they were not included in the record. But it is undisputed that N.Y.B. read a prepared statement apologizing for her “disturbance” and acknowledging that she made a poor choice by allowing her temper to get the best of her. N.Y.B. also apologized for any physical or emotional pain that she may have caused C.S. In addition, N.Y.B.’s attorney addressed the school board, urging it to consider various mitigating circumstances. After deliberation, the school board voted 5 to 1 to expel N.Y.B. until December 12, 2007. The school board explained its decision as follows:

The offense was: [N.Y.B.] assaulted another student and was insubordinate.
The grounds for expulsion are based on a determination by the Anoka-Hen-nepin School Board that the Discipline Policy: Code of Student Conduct has been violated, specifically:
“6. Violations against persons such as verbal and/or nonverbal intimidation/threats; ... assault; fighting. ...” This dismissal is consistent with Minnesota Statute 121A.45, Subd. 2, (enclosed) which establishes that a student may be dismissed for:
a. willful violation of any reasonable school board regulation. Such regulation must be clear and definite to provide notice to pupils that they must conform their conduct to its requirements;
b. willful conduct that significantly disrupts the rights of others to an education, or the ability of school personnel to perform their duties, or school sponsored extracurricular activities; or
c. willful conduct that endangers the pupil or other pupils, or surrounding persons, including school district employees, or property of the school.

The district also advised N.Y.B. of her right to appeal the school board’s decision to the Commissioner of Education (the commissioner) under Minn.Stat. § 129A.49 (2006). N.Y.B. exercised that right.

On appeal, the commissioner determined that “expulsion is a reasonable disciplinary action for assaulting another student and insubordination toward School staff.” But the commissioner concluded that the school board’s written explanation was inadequate. The commissioner reasoned that, although the school board’s decision “lists the general offense of assault and insubordination” and quotes the discipline policy, it failed to include the “controlling facts” relied on by the school board as required by Minn.Stat. § 121A.47, subd. 13 (2006). Specifically, the school board failed to state the facts on which it relied to expel N.Y.B. for one calendar year, “such as prior practice for similar incidents or whether the School Board considered the factors raised by [N.Y.B.] ’s counsel at the School Board meeting.” The commissioner, therefore, remanded the matter with instructions to the school board to amend its resolution to “provide a written decision that presents the controlling facts upon which [the expulsion decision] was made in sufficient detail to apprise” the parties and the commissioner of the basis and reason for expelling N.Y.B. for one calendar year.

On May 3, 2007, the school board convened an emergency meeting to comply with the commissioner’s directions. The school board amended its original resolution expelling N.Y.B. to include the following language:

1. Based on the evidence presented, including the recommendation for expulsion from school administration, as well as the statements of [N.Y.B.] and her legal counsel at the February 12, 2007 meeting, the Board determined that [N.Y.B.] ’s December 13, 2006 assault of another student by hitting her over the head with a lunch tray was a willful violation of paragraph III B.6 of the District Student Discipline Policy, Code of Student Conduct, which prohibits “violations against persons ... including ... verbal and/or non-verbal intimidation/threats ... assault, fighting....” Furthermore, after intervention by school staff and while [N.Y.B.] was being escorted to the office by an Assistant Principal, the Board determined that when [N.Y.B.] kicked off her shoes, broke away, and charged towards the other student, requiring [N.Y.B.] to be physically restrained by school officials, constituted a willful violation of paragraph III B.8 which prohibits disruptive acts “including disobedient, disruptive, and disrespectful behavior, defiance of authority, and insubordination.” Further, pursuant to policy guidelines, when physical aggression requires restraint by staff to prevent harm to other students, the consequences may be more severe. (Secondary Handbook summary of policies p. 38-39).
2. [N.Y.B.] ’s fighting constitutes a willful violation of reasonable School Board regulations and was incompatible with the school educational environment and the safety of the students and staff. Based on prior disciplinary actions by other students for similar violations of the District’s Student Discipline Policy, the School Board believes that an expulsion of less than one calendar year would be inconsistent with its past practices in similar or less severe cases. Specifically, as of February 12, 2007, the Anoka-Hennepin School Board had expelled 22 students in the 2006-07 school year for engaging in more than one fight in their high school career, or who have committed a single assault (with or without a weapon), or engaged in a single fight or assault that involved physical restraint by a staff member. Of those students, twelve received an expulsion for one year; seven received an expulsion of one calendar year with a probationary return after three academic quarters; two received an expulsion of one calendar year with a probationary return after two academic quarters; and one received an expulsion of three academic quarters with a probationary return after one academic quarter (this last consequence involved a student engaging in her second fight, however, she made attempts to avoid the fight and escape the situation). From February 12, 2007 to May 3, 2007, the District has expelled an additional six students for fights: three students were expelled for one year and three students received an expulsion of one calendar year with a probationary return after three academic quarters. Based on the Board’s review of these matters, the totality of the circumstances regarding [N.Y.B.] is at least as egregious as those incidents which led to one calendar year expulsions.

N.Y.B. subsequently appealed the postre-mand resolution, which the commissioner affirmed. This certiorari appeal followed.

ISSUES

I. Did the school board adequately explain its decision to expel relator for one calendar year as required by the Pupil Fair Dismissal Act (PFDA)?

II. Did respondent deprive relator of due process?

ANALYSIS

N.Y.B. challenges her expulsion from CRHS under the PFDA, MinmStat. §§ 121A.40-121A.56 (2006), which governs the expulsion of a public-school student. A public-school student may appeal a school board’s expulsion decision to the commissioner. Minn.Stat. § 121A.49. The commissioner’s decision on appeal is subject to judicial review by writ of certiorari. MinmStat. § 121A.50 (citing sections of administrative procedure act governing cer-tiorari review). Under Minn.Stat. § 14.69 (2006), we

may affirm the decision of the agency or remand the case for further proceedings; or [we] may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary or capricious.

Before addressing the parties’ arguments on the merits, we clarify the operative standard of review. Judicial intervention in the public-school system requires restraint. Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn.App.1999), review denied (Minn. July 28, 1999). Therefore, we generally defer to a school board’s judgment on matters of student discipline. In re Expulsion of I.A.L., 674 N.W.2d 741, 747 (Minn.App.2004). We do not, however, afford the same level of deference to the commissioner’s decision. Although in form we are reviewing the commissioner’s decision, MinmStat. § 121A.50, in substance we are reviewing the school board’s decision directly.

When an agency acts in a quasi-judicial capacity, we typically review its decision using the deferential substantial-evidence test. Indep. Sch. Dist. No. 192 v. Minn. Dep’t of Edue., 742 N.W.2d 713, 719 (Minn.App.2007), review denied (Minn. Mar. 18, 2008). This deference, however, assumes that the agency is performing quasi-judicial functions analogous to a court of original jurisdiction, such as “receiving and weighing evidence, making factual findings, and applying a prescribed standard to reach a conclusion.” Cf. id. (describing quasi-judicial functions). By contrast, the commissioner affirms, reverses, or modifies the school board’s decision after applying a standard of review to the record, or remands for additional fact-finding. Minn.Stat. § 121A.49. These are quasi-judicial functions equivalent to appellate review. See generally 5 C.J.S. Appeal and Error § 1013 (2007) (describing nature of appellate review). Thus, although we afford the typical deference to the school board’s decision, we owe no more deference to the commissioner’s review of that decision than the Minnesota Supreme Court owes to our review of a district court’s decision. Cf. In re Hutchinson, 440 N.W.2d 171, 175 (Minn.App.1989) (distinguishing high level of deference given to district court reviewing agency decision when district court “acts as a court of first impression” from de novo review conducted when district court is “itself acting as an appellate tribunal with respect to the agency decision”), review denied (Minn. Aug. 9, 1989).

This procedural nuance also circumscribes the record on which we may base our decision. The school board’s decision “must be based on the record.” Minn.Stat. § 121A.47, subd. 13. If the student exercises the right to an evidentiary hearing, the content of “the record” is clear; the factual basis for the school board’s decision is limited to the evidence admitted at the hearing, which the school board is obligated to have recorded. Id., subds. 7, 12-13. The record also encompasses the subsequent school board meeting at which the decision is rendered, including any commentary on the evidence. Cf. Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 675-76 (Minn.1990) (holding in context of reviewing teacher-dismissal decisions that “record” consists of proceedings and actions of school board). If, however, the student waives the right to the evidentiary hearing without stipulating to the evidence in the record, the record comprises only the decision-making meeting, including anything presented for the board’s consideration. See Minn.Stat. § 121A.47, subd. 13 (requiring school board’s decision to be based on the “record”); Dokmo, 459 N.W.2d at 675-76 (including school board’s proceedings in “record”).

When exercising quasi-appellate jurisdiction over a school board’s decision, the commissioner is bound by the record of the proceedings before the school board. Minn.Stat. § 121A.49. The legislature did not grant the commissioner jurisdiction to review facts presented in the parties’ submissions on appeal unless they are supported by the record. See id. (requiring commissioner’s decision, “based upon the record,” to be made within 30 days after receiving “the entire record and the parties’ written submission on appeal”); Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999) (“Whenever it is possible, no word, phrase, or sentence [in a statute] should be deemed superfluous, void, or insignificant.”). Notwithstanding the reference to “Findings of Fact” in its decision, the commissioner is not authorized to make factual findings. See Grinolds v. Indep. Sch. Dist. No. 597, 346 N.W.2d 123, 127-28 (Minn.1984) (holding that district court, which was exercising appellate jurisdiction over school board’s dismissal of superintendent, was not authorized to make factual findings).

The limited record before us does not include many of the “facts” the parties rely on in their briefs. For example, both parties inappropriately cite their own submissions on appeal to the commissioner to support factual propositions. Cf. Tang v. I.N.S., 223 F.3d 713, 720 (8th Cir.2000) (holding that factual assertion in appellate brief, which cited factual assertion in brief submitted to agency, constituted counsel’s argument, not evidence). Although the certiorari record includes any “papers filed” in the agency proceedings, Minn. R. Civ.App. P. 110.01, 115.04, subd. 1, the facts that we may consider on certiorari review are circumscribed by the scope of our review, namely, whether the commissioner reached a legally correct outcome when applying the appropriate standard of review to the record before it, see In re Block, 727 N.W.2d 166, 176 (Minn.App. 2007) (stating that appellate court should confine itself to facts and circumstances before quasi-judicial body whose decision it is reviewing); Buss v. Johnson, 624 N.W.2d 781, 788 (Minn.App.2001) (limiting “record” for purpose of appellate review to “the record before the administrative body at the time it made its decision”). With these parameters in mind, we turn to the merits of N.Y.B.⅛ challenge to her expulsion.

I.

N.Y.B. argues that the school board’s written decision failed to comply with the PFDA’s formal requirements. Specifically, she argues that, despite the commissioner’s directions on remand, the school board failed to explain why it decided to expel her for one calendar year.

It is well established that a school board has plenary authority on matters of student discipline. E.g., Expulsion of I.A.L., 674 N.W.2d at 747. Even so, a school board’s expulsion decision, like the decision of any other .agency, must be “based on objective criteria applied to the facts and circumstances of the record at hand.” See Carter v. Olmsted County Hous. & Redevelopment Auth., 574 N.W.2d 725, 729 (Minn.App.1998) (quotation omitted) (discussing limits on agency discretion). The PFDA grants a school board the authority to expel a student for up to one calendar year if that student willfully (1) violates a reasonable school-board regulation, (2) engages in significantly disruptive conduct, or (3) engages in conduct that endangers the student or others. Minn.Stat. §§ 121A.41, subd. 5, 121A.45, subd. 2. To ensure the proper application of these criteria when expelling a student, a school board’s decision must be in writing and “state the controlling facts on which the decision is made in sufficient detail to apprise the parties and the commissioner of education of the basis and reason for the decision.” Minn.Stat. § 121A.47, subd. 13.

The district argues that the school board’s decision, as amended on remand, complies with this requirement. The amended decision states that the school board expelled 22 students for fighting during the 2006-07 school year, with disciplinary consequences ranging from expulsion with probationary return after one academic quarter to expulsion for one calendar year. “Based on [its] review of these matters,” the school board concluded that “the totality of the circumstances regarding [N.Y.B.] is at least as egregious as those incidents which led to one calendar year expulsions.” The district maintains that this explanation contains “sufficient detail” to satisfy section 121A.47, subdivision 13, because it apprises the parties and the commissioner of the rationale for the school board’s decision, namely, that an expulsion of less than one calendar year would be inconsistent -with the school board’s past practice. We disagree.

An agency not only must identify the evidence on which it is relying, but also it must “explain ... how that evidence connects rationally with the agency’s choice of action.” Peterson v. Minn. Dep’t of Labor & Indus., 591 N.W.2d 76, 79 (Minn.App.1999) (quotation omitted), review denied (Minn. May 18, 1999). The PFDA requires a school board to explain its decision in sufficient detail to facilitate meaningful appellate review. See Minn. Stat. §§ 121A.47, subd. 13 (requiring “sufficient detail to apprise ... the commissioner of education of the basis and reason for the decision”), 121A.49 (providing for appeal to commissioner of education), 121A.50 (providing for judicial review). Here, the decision states that (1) the school board expelled a quantity of students for fighting and (2) a subset of those students were expelled for one calendar year. But without a factual context, the number and lengths of prior expulsions tell us nothing about the relative seriousness of N.Y.B.’s conduct compared to that of the other students. The decision fails to explain why the school board concluded that N.Y.B.’s conduct “is at least as egregious as those incidents which led to one calendar year expulsions.” Consequently, we are unable to determine whether the decision to expel N.Y.B. for one calendar year is the product of reasoned decision-making. See Watab Twp. Citizen Alliance v. Benton County Bd. of Comm’rs, 728 N.W.2d 82, 89 (Minn.App.2007) (discussing judicial review of administrative decision-making), review denied (Minn. May 15, 2007).

The decision also does not address any of the mitigating circumstances N.Y.B. raised. For example, she argued that, because the December 13 incident was her first offense, the presumptive disciplinary disposition was a ten-day suspension, not an expulsion for one calendar year. Even if the school board rejected N.Y.B.’s argument, it was required to explain its reasons for doing so. The district responds that a “detailed analysis ... goes well beyond the requirements of [Minn.Stat. § 121A.47, subd. 13].” But the PFDA requires the school board to explain the reasons for both the expulsion and its length. Cf. Minn.Stat. § 121A.47, subd. 13 (requiring “sufficient detail to apprise the parties ... of the basis and reason for the [school board’s] decision” (emphasis added)); In re Expulsion of Z.K., 695 N.W.2d 656, 661 (Minn.App.2005) (recognizing that student has due-process right to challenge an expulsion regarded as unjust).

We acknowledge that the phrase “sufficient detail” defies precise, technical definition. But the practical standard it describes is akin to a mathematics teacher’s admonition to students to “show your work.” Indeed, the PFDA requires the school board to explain its decision for the same reason that a teacher requires students to record the steps taken to solve an equation. Without an explanation of the analysis performed, the school board’s decision cannot be fairly evaluated.

We cannot affirm the school board’s decision to expel N.Y.B. for one calendar year because the school board failed to explain its decision, as required by the PFDA. But we also cannot hold, as N.Y.B. urges, that the school board’s decision was either arbitrary and capricious or unsupported by substantial record evidence. We, therefore, remand and direct the school board to explain its decision in “sufficient detail” to comply with Minn.Stat. § 121A.47, subd. 13. At a minimum, this decision should include (1) the school board’s basis for determining the relative egregiousness of N.Y.B.’s physical aggression, (2) the factual context of any incidents with which N.Y.B.’s conduct was compared, (3) an explanation of the school board’s determination of how N.Y.B.’s conduct compares with the other incidents, and (4) an explanation of how the school board reached its conclusion about the relative seriousness of N.Y.B.’s conduct after considering the mitigating circumstances presented by N.Y.B.

II.

N.Y.B. also challenges her expulsion on procedural-due-process grounds. Whether a given procedure violates due process presents a question of law, which we review de novo. Expulsion of I.A.L., 674 N.W.2d at 744.

Education is a fundamental right in Minnesota, Minn. Const. art. XIII, § 1, as well as a property interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975). Thus, a student may not be expelled for misconduct without adherence to the minimum procedures required by due process. Expulsion of I.A.L., 674 N.W.2d at 744; see also Minn.Stat. § 121A.42 (incorporating into PFDA guarantee of due process).

Having concluded that constitutional due-process protection applies, we next consider whether due process was afforded. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). In an expulsion proceeding, the requisite level of due process is determined by (1) the private interest that will be affected by the official action, which is N.Y.B.’s right to a public education; (2) the risk that the procedures used erroneously deprived her of that interest; (3) the probable value, if any, of additional or substitute procedural safeguards; and (4) the district’s interests, including its educational function, and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See In re Expulsion of E.J.W., 632 N.W.2d 775, 780 (Minn.App.2001) (applying Mathews v. Eldridge, 424 U.S. 319, 341, 96 S.Ct. 893, 906, 47 L.Ed.2d 18 (1976), to expulsion procedure).

In support of her due-process claim, N.Y.B. relies on numerous technical violations of the PFDA. For example, the district failed to furnish her a list of low-cost legal resources. See Minn.Stat. § 121A.47, subd. 2(f)(1) (requiring district to furnish list of low-cost legal services). To obtain relief on appeal, however, a party generally must establish that the alleged error — even a constitutional error— resulted in prejudice. In re Welfare of D.T.N., 508 N.W.2d 790, 797 (MinnApp. 1993), review denied (Minn. Jan. 14, 1994). And although we have recognized the importance of a district’s obligation to provide students with a list of low-cost legal counsel, Expulsion of Z.K, 695 N.W.2d at 663, N.Y.B. has not established that she was prejudiced by the district’s lapse, since she obtained pro bono counsel on her own. Likewise, N.Y.B. has failed to establish prejudice resulting from the other violations of the PFDA. Indeed, N.Y.B. acknowledges that she cannot demonstrate that she was prejudiced. Rather, she argues that her expulsion was “so riddled with [procedural] flaws” that, when taken collectively, she was deprived of due process. In the absence of prejudice, however, N.Y.B. has not established a basis for relief.

N.Y.B. also argues that the district unfairly induced her to waive her right to an evidentiary hearing. Citing a contemporaneous letter written by her counsel memorializing a meeting with the district’s general counsel, N.Y.B. claims that the district’s general counsel advised that N.Y.B.’s ability to address the school board was effectively contingent on her waiving the right to an evidentiary hearing. But we lack a factual basis in the record to evaluate this claim. Although N.Y.B. included the letter in her appendix, it does not appear to be part of the record on appeal. Without an evidentiary basis to evaluate N.Y.B.’s claim, it is not properly before us. See Grundtner v. Univ. of Minn., 730 N.W.2d 323, 334 (Minn.App.2007) (stating that appellant must provide record “sufficient to show the alleged errors”).

DECISION

The school board failed to explain why relator’s conduct warranted an expulsion for one calendar year in sufficient detail to satisfy Minn.Stat. § 121A.47, subd. 13 (2006). Because we are unable to exercise meaningful appellate review of the expulsion decision without that explanation, we remand with instructions to the school board to supply such information as set forth in Section I, swpra. However, in light of relator’s failure to demonstrate prejudice, we reject relator’s claim for relief on due-process grounds.

Remanded.

      . Under the PFDA, expulsion is a species of "dismissal,” along with suspension and exclusion. Minn.Stat. § 121A.41, subd. 2.

      . The statutory language is unmistakable. The parties to a PFDA appeal are referred to as "appellant” and "respondent,” and the appellant initiates review by filing a "notice of appeal.” Minn.Stat. § 121A.49. The ultimate act to be reviewed is the school board’s "decision,” not a “recommendation.” Compare id. (appeal from school board's decision), with Minn.Stat. § 121A.47, subds. 12-13 (stating that school board’s decision is to be based on hearing officer’s recommendation). And the commissioner must adhere to a standard of review with respect to the school board’s decision that is identical to the standard we use on writ of certiorari. Compare Minn.Stat. § 121A.49, with Minn.Stat. § 14.69.

      . The prohibition on parties introducing in their commentary "any evidence not admitted at the hearing," Minn.Stat. § 121A.47, subd. 13, does not apply when a student waives an evidentiary hearing. Otherwise, a legitimate expulsion process could be thwarted by waiving the hearing and consequently depriving the school board of the opportunity to present a factual basis for expulsion. We do not believe the legislature intended such an absurd result. Minn.Stat. § 645.17(1) (2006). Rather, we read this aspect of section 121A.47, subdivision 13, as prohibiting parties from introducing new evidence in closing argument to the school board.

      . In its amended decision, the school board also provided similar figures for expulsions postdating its February 12, 2007 decision to expel N.Y.B. Because these subsequent expulsions had not occurred when the school board decided to expel N.Y.B. for one calendar year, they do not constitute "controlling facts” within the meaning of the PFDA. Cf. Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 577 (Minn.2000) (stating that remand for findings must be limited to protect individual subject to decision from post hoc rationale).

      . Although the district's physical-aggression policy prescribes a ten-day suspension as the presumptive disciplinary disposition for a first offense, the district also reserves the discretion to "apply more appropriate consequences when needed to provide for the safety of all students.”