Minnesota Department of Administration Advisory Opinion 04-024

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 February 2, 2004, IPAD received a letter dated December 8, 2003. In that letter, X requested an advisory opinion regarding a possible violation by Independent School District 77, Mankato, of X's child's rights as a data subject. IPAD staff requested clarification, which X provided on February 20, 2004.

In response to X's request, IPAD, on behalf of the Commissioner, wrote to Ed Waltman, Superintendent of the District. The purposes of this letter, dated February 27, 2004, were to inform him of X's request and to ask him to provide information or support for the District's position. On March 9, 2004, IPAD received a response, dated same, from Paul Ratwik, an attorney representing the District.

A summary of the facts as presented by X is as follows. In X's letter, s/he wrote that X's minor child is a student at the District and that the child receives special education. X wrote that his/her child received a copy of the yearbook:

...On the page were about six photos of students identified as special education students. The content on the page described the purpose of special education and was stigmatizing in nature...

...I was especially upset because neither [X's child] nor I had been approached about granting permission for [X's child's] photo to be featured on the special education page....

X also noted that X's attorney, in a letter dated July 2, 2003, wrote to the Vice Chair of the Mankato School Board, in part, asking for a copy of the District's FERPA (federal Family Educational Rights and Privacy Act) policy.

In a letter dated August 12, 2003, the District's Director of Human Resources wrote to X's attorney. He stated, "...you asked for a copy of the District's FERPA policy. That policy is available on the District's website at...I believe this is the policy you are looking for. If you are unable to access this policy online let me know and I will be glad to send you a copy."



Issues:

In his/her request for an opinion, X asked the Commissioner to address the following issues:

  1. Pursuant to Minnesota Statutes, Chapter 13, did School District 77, Mankato, comply with Minnesota Statutes, Chapter 13, in publishing certain data about a student in a yearbook?
  2. Pursuant to Minnesota Statutes, Chapter 13, did School District 77, Mankato, comply with Minnesota Statutes, Chapter 13, by responding to a July 2, 2003, request for data by providing its website address?



Discussion:

Issue 1:

Pursuant to Minnesota Statutes, Chapter 13, did School District 77, Mankato, comply with Minnesota Statutes, Chapter 13, in publishing certain data about a student in a yearbook?

Data about students are governed by both Minnesota and federal law. Section 13.32 classifies data relating to students and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g, and its implementing regulations, 34 C.F.R. Part 99. Subject to limited exceptions, educational data are private and may not be released without consent.

One of the exceptions, under section 13.32, subdivision 5, is that any data a district chooses to designate as directory information pursuant to the provisions of FERPA are public. Under the federal regulations, "directory information" means "information contained in an education record of a student..." (See 34 C.F.R. section 99.3.)

Mr. Ratwik provided a copy of the District's policy relating to Protection and Privacy of Pupil Records. It states that the District has designated the following data as directory information (public data):

It includes, but is not limited to: the student's name, address, telephone number, electronic mail address, photograph, date and place of birth, major field of study, dates of attendance, grade level, enrollment status (i.e., 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. "Directory information" does not include personally identifiable data which references religion, race, color, social position or nationality.

The data in question are contained on a page entitled, Cooperative Learning - Working to build strong individuals. The text on that page reads:

The purpose of the Special Education programs is to provide students with the opportunity to receive an education designed to meet their individual needs and to assist them in overcoming areas of difficulty. Students and parents are part of a team that also includes teachers and the school counselor. This team develops individual goals with appropriate support based on the strengths, interests and abilities of the student.

Transition from the high school to independent living is the primary focus at the secondary level. A transition plan is developed by the student, teachers, counselors, and parents. This plan addresses issues related to independent living, including further education or training, employment, community, participation, recreation/leisure and daily living skills. Students continue to evolve as the program strives to best meet the needs of that particular student.

Also on the page are six photographs, each containing one or more students. Each of the photographs has a caption, five of which identify, by name, the student(s) in the photograph.

In his comments to the Commissioner, Mr. Ratwik wrote:

The text of [the page containing the data in question] uses the term "special education" only once, and then only in the context of a very general discussion [sic] the broad purpose of the special education programs. None of the text that appears on [the page] provides any information about the nature of the program of education that Complainant's student has received. Nothing in the text of [the page] says that any, or every, student whose photograph appears on the page is a special education student.

Complainant's complaint is, therefore, based on a presumption as to an inference that a casual reader might draw. This is not a sufficient basis to conclude that educational data has been improperly released.

Before proceeding, the Commissioner states his opinion that based on the text contained on the Cooperative Learning page, a reasonable person would assume that students identified on that page, by photograph and by name, are receiving special education services from the District.

Pursuant to section 13.32, most student data, with the exception of directory information, are private. In examining the District's directory information policy, it is clear that a photograph of X's child is public. However, it is not clear whether a picture of a child, including a picture of X's child, receiving special education services is public or private.

The District's directory information policy, in relevant part, states that a student's grade level, participation in officially recognized activities, and other similar information is public. When the federal Department of Education, in the FERPA rules, created a way for public educational institutions to treat certain student information as public, it also enacted a requirement that districts notify parents about the policy and allow parents to opt out. It does not seem reasonable that a district can fulfill its notice requirement unless its list of directory information identifies specific elements of data. Here, the District has used two phrases that are nonspecific: "officially recognized activities" and "includes, but is not limited to." The Commissioner cannot say, with certainty, whether special education classes are included in either of those two categories. It follows that X was not able to determine whether s/he needed to opt out of either one of the categories if X did not want it publicly shared, via yearbook photographs, that his/her child receives special education services.

The Commissioner is aware that many school districts take, verbatim, the example provided in the federal rules (see 34 C.F.R. §99.3) and use it to describe the data made public by their own directory information policy. While that may be appropriate in some situations, it is important to note that each district is free to create its own policy. In addition, the Commissioner urges any district that includes items such as "officially recognized activities" in its policy to define clearly the types of activities encompassed by that phrase. If a district does not make clear what types of information it will release to the public, parents are not able to exercise effectively their right to choose whether to opt out.

In his comments, Mr. Ratwik cited Daniel S. v. Board of Education of York Community High School, 152 F.Supp.2d 949 (N.D.Ill. 2001). In that case, the court found that a teacher's disclosure to his cross-country team that he had kicked two students out of his gym class did not violate FERPA simply because the information might appear in school records, where it also was known independently by members of the school community, including two gym classes which had witnessed the incident. The Commissioner believes the facts of the Daniel S. case are distinguishable from the situation of this opinion and so the outcome of the Daniel S. case is not applicable here. In Daniel S., the teacher released information not derived from school records to other students. In the opinion question before the Commissioner, the District, via the yearbook, disclosed data that were derived from school records to members of the public.

The presumption in both federal and state law is that data relating to students are private. To allow school districts to function as part of the community, the federal government created a process whereby districts are allowed to release not public data in certain situations. This process requires districts to designate certain data as directory information and offer parents the opportunity to opt out. The directory information process is incorporated by reference into Chapter 13. In the present situation, the Commissioner is of the opinion that District 77's directory information policy is not specific enough to allow parents to make an informed choice about whether or not to opt out of allowing the District to release certain not public data. Therefore, the District did not comply with Chapter 13 when it disclosed data about X's child revealing that s/he received special education services from the District.

Issue 2:

Pursuant to Minnesota Statutes, Chapter 13, did School District 77, Mankato, comply with Minnesota Statutes, Chapter 13, by responding to a July 2, 2003, request for data by providing its website address?

Pursuant to Minnesota Statutes, section 13.03, subdivision 3(c), a responsible authority or designee shall provide copies of public data upon request.

As stated above in the Facts and Procedural History section of this opinion, X's attorney requested a copy of the District's FERPA policy in letter July 2, 2003, letter. The District responded in an August 12, 2003, letter by advising X's attorney that she could access the policy on the District's website.

In his comments to the Commissioner, Mr. Ratwik cited section 13.03, subdivision 3(b), and stated:

The [District] provided the attorney with access to the data, just as it was required to do under [section 13.03, subdivision 3]. That access allowed the requesting party to inspect and to copy the public data. [Chapter 13] specifically provides for this method of providing access to and copies of public government data.

Section 13.03, subdivision 3(b), in relevant part, provides:

For purposes of this section, "inspection" includes, but is not limited to, the visual inspection of paper and similar types of government data....In the case of data stored in electronic form and made available in electronic form on a remote access basis to the public by the government entity, inspection includes remote access to the data by the public and the ability to print copies of or download the data on the public's own computer equipment....

The Commissioner has the following comments. The Legislature's intent in enacting section 13.03, subdivision 3(b), was to clarify that if a government entity chooses to post public data on its website, it cannot charge a member of the public a fee for accessing those data and printing or downloading copies on the individual's own computer equipment. Section 13.03, subdivision 3(b), clarifies that this type of access fits within the definition of "inspection." Pursuant to section 13.03, subdivision 3(a), inspection is free.

X's attorney requested that the District forward to her a copy of the District's FERPA policy. Pursuant to section 13.03, subdivisions 1 and 3(c), and Minnesota Rules, section 1205.0300, the District was required to provide a copy of the policy within a reasonable time. The Commissioner is aware that many government entities post public data on their websites and that many individuals have access to the internet and a printer. However, many individuals have access neither to a computer nor to the internet. Thus, in response to a data request, if a government entity is going to offer the requestor the option of either obtaining data from the internet or having the entity make a copy, the entity needs to make the offer very early in the process of responding to the request. That way, if the requestor prefers to receive a copy directly from the entity, the entity can ensure the requestor will get the copy in a timely manner. This also ensures that the entity meets is statutory obligation to provide the requested copy.

Here, the District took six weeks before informing X's attorney that the data she sought are available on the District's website. The District's response put X's attorney in a position where, if she was not able or chose not to access the data from the internet, she was forced again to contact the District for the data. In this situation, the District has not met its obligation of providing the requested data within a reasonable time.


Opinion:

Based on the facts and information provided, my opinion on the issues that X raised is as follows:

  1. Pursuant to Minnesota Statutes, Chapter 13, School District 77, Mankato, did not comply with Minnesota Statutes, Chapter 13, in publishing certain data about a student in a yearbook.
  2. Pursuant to Minnesota Statutes, Chapter 13, School District 77, Mankato, did not comply with Minnesota Statutes, Chapter 13, in its response to a July 2, 2003, request for data by providing its website address.

Signed:

Brian J. Lamb
Commissioner

Dated: April 14, 2004