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:For purposes of simplification, the information presented by the agency that requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of PIPA and, with the exception of any data that are not public, are available for public access.
On June 6, 1996, the Commissioner and PIPA received a letter requesting an advisory opinion from Bruce H. Johnson, Commissioner of the Minnesota Department of Children, Families and Learning, hereinafter "MDCFL." In that letter, Commissioner Johnson described a request for access to data that had been received by MDCFL from the Star Tribune, a Twin Cities newspaper. Specifically, the Star Tribune asked for the basic skills test scores in reading and math ". . . for each school in each school district . . . ." Commissioner Johnson indicated that the Minnesota Attorney General's Office had advised MDCFL that the State could face legal exposure under the Data Privacy Act [sic], and the federal law regulating educational records, the Family Educational Rights and Privacy Act of 1974. Commissioner Johnson then asked that the Commissioner issue an opinion as to whether the data requested by the Star Tribune could be released in a manner consistent with state and federal law.
Upon receipt of this request, PIPA staff, in a letter to Commissioner Johnson, asked for additional and clarifying information about the Star Tribune's request, and the actual content of the basic skills testing data which are maintained by MDCFL and by the test processing vendor being used by MDCFL. This information was received by PIPA on June 10, 1996.
The data in question are the results of the preliminary basic skills testing that was conducted in school districts across the State. The data generated by the testing process includes detailed scores for each student tested on various aspects of reading and mathematics. Included with these data are the name, date of birth, school, school district, gender and ethnic heritage of each student who was tested. The data for each student have been integrated into a statewide computerized data base which is capable of reporting test results at a variety of levels and in a variety of formats. For example, the number of students scoring less than or more than 70 percent in the tests can be reported for the entire State, for urban, suburban and greater Minnesota, for each individual school district and for each school within any given school district.
|Can the MDCFL provide the data requested by the Star Tribune in a manner that will not violate the rights provided for individual students under state and federal law?|
The Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13 and hereinafter "MGDPA" or "Chapter 13," states a strong presumption that all government data are accessible to the public unless there is a state statute or federal law that provides that certain data are not public. (Minnesota Statutes Section 13.03, subdivision 1.) This presumption of public access, as supplemented by language in the balance of Section 13.03, places a substantive duty on government entities to make public data fully accessible by the public. However, when a government entity receives a request for access to government data that have been declared to be not public by statute or federal law, the entity has an equally clear duty under Chapter 13 not to disclose the data to the public. Disseminating not public data to the public may expose the government entity to civil liability under Minnesota Statutes Section 13.08, and may subject employees of the government entity to personnel and criminal sanctions under Minnesota Statutes Section 13.09. The actual classification of the data as public or not public will determine which of these seemingly colliding duties the government entity is required to perform.
In this particular instance, the Star Tribune has requested that the MDCFL provide data on the results of the basic skills tests in reading and math for each school building in the state. The MDCFL agrees that the data requested can be provided from the statewide computerized data base that records the test results. However, the MDCFL and its attorney question whether doing so would constitute the release of private data on students, which would be a violation of Chapter 13. They also question if providing the building results to the Star Tribune would constitute a release of education records without parental consent in violation of the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g, and hereinafter "FERPA."
With the exception of directory information about students, which does not include student testing data, Section 13.32 of the MGDPA classifies educational data as private data on individuals. (Minnesota Statutes Section 13.32, subdivision 3.) Educational data are defined as: ". . . data on individuals maintained by a public educational agency or institution or by a person acting for the agency or institution which relates to a student." (Minnesota Statutes Section 13.32, subdivision 1 (a).) (Emphasis added.) As a public educational agency, MDCFL cannot disseminate private educational data to the public.
In its request for the data, the Star Tribune strongly states its position that the data it is requesting are summary data, the release of which is not proscribed because releasing a building summary is ". . . in no way similar to releasing an individual test score." The Star Tribune'sposition is that data which summarize the basic skills test results for each school building in the state are not private educational data and are therefore accessible by the public.
Guidance on the issue of whether the data requested by the Star Tribune are "summary data," or private data that MDCFL must protect from public disclosure, comes from provisions in the MGDPA, from federal law and from a detailed examination of the data being requested.
As described earlier, educational data are, in most instances, private data. However, for the data requested by the Star Tribune to be private, the data must be "data on individuals." (Minnesota Statutes Section 13.02, subdivision 12.) "Data on individuals" means all government data in which any individual is identified or can be identified as the subject of the data. (Section 13.02, subdivision 4.) The Rules of the Department of Administration clarify that data on individuals include all data ". . . if it can in any way identify any particular individual." (Minnesota Rules, Section 1205.0200, subpart 4.) If an examination of a set of government data allows the examiner to be able to associate that set of data with a particular individual, then, for purposes of Chapter 13, the data in question are data on individuals.
The Star Tribune has requested a building-by-building summary of the basic skills test results. It is possible, depending on the exact nature of the data associated with each building, that the test results are data on individuals because the data themselves can be associated with particular individuals, or the very nature of the data say something about individuals whose identities are easily ascertainable. The probability that the data can be associated with a particular individual or can be used in combination with other data to ascertain the identity of particular individuals increases if, in addition to the test results by building, the public were to gain access to the demographic data for that building, even if the demographic data themselves did not include the names of particular students. As a result, a particular student may be identifiable and the test results for the student will be disclosed because the particular student possesses unique demographic characteristics for that building.
As discussed by the Star Tribune and the MDCFL, a similar result of disclosing the test results for individually identifiable students may occur when the results for a building state that everyone in a grade level either passed or failed the test. Name, grade level and school attended have been designated as directory information by many school districts and are public data for purposes of Chapter 13. (See Minnesota Statutes Section 13.32, subdivision 5.) Combining the public directory data with the test results for a given building, in an instance in which everyone in a grade level in that building either passed or failed, would effectively disseminate private data, i.e., the test results for each student in that grade, to the public. This result clearly would be contrary Minnesota Statutes Section 13.32.
It is possible that public access to much of the data being requested by the Star Tribune can be provided in a way that does not expose the MDCFL to potential liability under Chapter 13. If the MDCFL can produce test results that are actually "summary data" as defined by Chapter 13, then the summary data may be disclosed to the Star Tribune and to other members of the public. (See Minnesota Statutes Sections 13.02, subdivision 19, and 13.05, subdivision 7.)
As it processes the individual testing data with the objective of preparing summary data, the MDCFL is obligated to protect the privacy and other interests of individuals who are identified in the data. This requirement can be met by the MDCFL if it produces summary data in such a way that individuals are not identified, and characteristics which could uniquely identify an individual are not ascertainable from the summary data once the summary data have been produced. A building-by-building summary which does not contain unique demographic data, or which does not disclose that all students assigned to a building either passed or failed, should meet the test of summary data as required by Chapter 13.
In this particular instance, the MDCFL's decision as to whether it is proper to release the data sought by the Star Tribune must also be guided by federal law. FERPA regulates, among other things, the disclosure of personally identifiable information from education records by educational agencies and institutions who accept or have accepted federal funds under the various titles of federal law for which the United States Secretary of Education has responsibility. The FERPA Rules define education records to include records that directly relate to a student that are maintained by an educational agency or institution. (34 C.F.R. Parts 99.1 and 99.3.) The MDCFL is an educational agency that accepts federal funds and the records it maintains on students are subject to FERPA.
A major objective of FERPA is to limit disclosure of personally identifiable information in education records. With limited exceptions, FERPA requires that parental consent be obtained before personally identifiable information is disclosed from an education record of a minor student. (34 C.F.R. Part 99.30.) If the test results requested by the Star Tribune constitute personally identifiable information, then, absent parental consent, their disclosure would be prohibited.
FERPA defines "personally identifiable information" to include a list of personal characteristics or other information that would make the student's identity easily traceable. (34 C.F.R. Part 99.3.) This definition makes it clear that, just as with the MGDPA, FERPA, in its regulation of education records, recognizes that a given set of information maintained by an educational agency or institution, even if it does not contain a name or other unique personal identifier, may by its nature allow for a particular student to be linked to the data in question. In that instance, FERPA requires the consent of a parent before the data could be disclosed. Failure to obtain that consent would be a violation of FERPA and its regulations. To the extent that the building-by-building results sought by the Star Tribune would present a list of personal demographic characteristics, or would otherwise make a student's identity easily traceable, then those results constitute data whose disclosure requires parental consent as mandated by FERPA.
The MDCFL is required by Chapter 13 to meet both the obligation to provide public data to the public, and the obligation to protect private data from public disclosure. Because it is a public educational agency, federal law also limits MDCFL's disclosure of personally identifiable information about students. MDCFL can meet those seemingly conflicting imperatives by a careful examination of the specific data contained in the basic skills test results for each school building. Those results that can be released in a manner that does not reveal the testing performance of a particular student are public data and are discloseable to the Star Tribune. Any building test results which by the nature of the data could reveal the performance of a particular student on the basic skills test are protected as private data under Chapter 13, are limited in their disclosure by FERPA, and cannot be released to the public.
Based on the correspondence and other information provided in this matter, my opinion on the issue raised by Commissioner Johnson is as follows:
|The Minnesota Department of Children, Families and Learning may disclose the building-by-building test result data sought by the Star Tribune in those instances where the particular data being disclosed do not contain demographic or other data from which the test results of individual students can be ascertained.|
Elaine S. Hansen
Dated: June 14, 1996