This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:
On March 18, 2003, the Commissioner received a letter dated March 17, 2003, from Paul Beilfuss, Superintendent of Independent School District 284, Wayzata. In his letter, Superintendent Beilfuss asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the District maintains.
A summary of the facts is as follows. In his letter, Superintendent Beilfuss wrote:
School District officials regularly videotape athletic events that occur in conjunction with the School District's extracurricular programs. These athletic events are typically held in the School District's athletic facilities and are open to the public. The primary purpose of videotaping is to be able to review the game with participating athletes, as a means of instructing and improving performance. Videotapes contain images of numerous student athletes from the School District and from visiting teams, as well as images of spectators and coaching personnel.
The School District has received a request for a copy of the School District's videotape of [sic] particular game from a visiting team member. The School District is concerned that the videotape contains private educational data and private personnel data that are not feasibly separated from public data, and that the release of the videotape would be an unauthorized dissemination of private data.
In addition, the School District occasionally receives a parental request for the School District to provide a copy of a videotape of an athletic event to a college or university, in connection with a student's application to that institution. Again, the School District is concerned that releasing such a tape may violate [Chapter 13].
Additionally, the School District regularly videotapes certain locations within its schools and maintains videotapes in accordance with its policies. The purpose of such videotaping is to discourage misbehavior by students, thereby increasing school safety. A parent of a student involved in [sic] altercation with a school employee requested a copy of [sic] videotape that contained a record of the dispute.
In her request for an opinion, Superintendent Beilfuss asked the Commissioner to address the following issues:
Pursuant to Minnesota Statutes, Chapter 13, are videotapes of School District extracurricular athletic contests and/or school hallways government data, where they are created and maintained by agents of the District?
Minnesota Statutes, section 13.02, subdivision 7, defines government data as "all data collected, created, received, maintained or disseminated by any [government entity] regardless of its physical form, storage media or conditions of use."
The videotapes are data that the District, or its agents, collect and maintain. They clearly, therefore, are government data.
Assuming the answer to Issue 1 is answered in the affirmative, if the videotapes contain images of students enrolled in the School District and/or employees of the District, pursuant to Minnesota Statutes, Chapter 13, do they contain private data on individuals? Is the answer the same when the videotaping occurs at a public event, such as an athletic contest that is open to the public?
Provisions of both Minnesota and federal law govern access to data about students. Section 13.32 classifies data relating to students (termed "educational data") and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g, and its implementing Rules, 34 CFR Part 99. Subject to limited exceptions, educational data (termed "education records" under FERPA) are private and may not be released without consent.
One of the exceptions is that any data a district designates as directory information are public. Federal regulations require that data designated as directory information be of the type that generally would not be considered harmful or an invasion of privacy. 34 CFR §99.3 provides:
"Directory information" means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not limited to, the student's name, address, telephone listing, electronic mail address, photograph, date and place of birth, major field of study, dates of attendance, grade level, enrollment status (e.g., undergraduate or graduate; full-time or part-time), participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees, honors and awards received, and the most recent educational agency or institution attended. [Emphasis added.]
(See also section 13.32, subdivision 5.)
The Commissioner does not know which data the District has designated as directory information. However, it seems likely the District would designate participation in sports as directory information; to not do so would mean that such data are private and not accessible to the public.
Data about employees are classified pursuant to section 13.43 (personnel data). Subdivision 2 of section 13.43 enumerates the types of personnel data that are public. Subdivision 4 of section 13.43 classifies most other types of personnel data as private.
Given the types of data about employees and students that are private, it seems a videotape made of a school hallway likely would contain private data. For example, as the Commissioner opined in Advisory Opinion 98-027, photographs of employees are private data. Also, photographs of students are private unless the District has designated them as directory information.
The answer to the second part of Issue 2, i.e., a videotape the District made at a public event, such as an athletic contest that is open to the public, is more complicated. If the District has designated photographs and other types of information about athletes as directory information, it seems fairly clear the data on the videotape are public. However, if that is not the case and some of the data on the videotape are private, the District's refusal to release the tape may create an absurd result. By agreeing to participate in an event held at a public place, the students and any employee coaches have, in effect, given consent for data about them to be released. The fact that the District videotaped the athletic contest does not change the practical effect of the students and coaches agreeing to participate, i.e., who participated, how they participated, and what happened is all public.
Pursuant to Minnesota Statutes, Chapter 13, may the School District release a videotape that contains data on multiple students and/or employees where it is not feasible to redact the tape to exclude data on students or employees who have not provided their consent to release private data?
In Advisory Opinion 96-002, the Commissioner wrote:
As the Commissioner stated in Advisory Opinion Number 94-034, it is her opinion that if documents, etc., contain data about one or more data subjects, it may be necessary for a government entity to withhold, from one or more of the data subjects, access to some or all of the content of those documents. The Commissioner's position is buttressed by the holding in Northwest Publications which states that entire documents may be withheld under Chapter 13 only when public and nonpublic information is so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value. However, it is important to note that the Commissioner, as well as the court in Northwest Publications, maintains that denial of access of data to the data subject should occur only in situations where it is impossible to appropriately separate or redact the data.
Thus, in situations where the District determines it is impossible to redact a videotape without inappropriately releasing private data about a student or employee, the District may withhold the entire videotape.
Based on the facts and information provided, my opinion on the issues that Superintendent Beilfuss raised is as follows:
Brian J. Lamb
Dated: April 23, 2003