February 5, 1996; School District 834 (Stillwater)
2/5/1996 10:14:43 AM
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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions 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 January 5, 1996, PIPA received a FAX of a letter dated January 3, 1996, from Dean Berckes. In his letter, Mr. Berckes requested that the Commissioner issue an advisory opinion regarding his difficulty in gaining access to certain data maintained by School District #834, Stillwater, hereinafter Stillwater. In response to Mr. Berckes' request, PIPA, on behalf of the Commissioner, wrote to David Wettergren, Superintendent of Stillwater. The purposes of this letter, dated January 9, 1996, were to inform Superintendent Wettergren of Mr. Berckes' request, to ask him or Stillwater's attorney to provide information or support for Stillwater's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On January 19, PIPA received a FAXed response from Marv Swanson, Director of Personnel for Stillwater. (In subsequent correspondence, Mr. Berckes and Superintendent Wettergren were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)
A summary of the facts surrounding this matter is as follows. Mr. Berckes supplied to PIPA a copy of a form letter which he has apparently mailed to many Minnesota school districts. In that letter, Mr. Berckes stated:
According to a copy of a letter dated December 26, 1996, addressed to Mr. Berckes from Mr. Swanson, Mr. Berckes sent his request to Stillwater on December 19, 1995. In his response to that request, Mr. Swanson wrote:
In his response to Mr. Berckes' opinion request, Mr. Swanson provided a copy of Stillwater's School Board policy which defines Stillwater's policy regarding directory information. Mr. Swanson stated, The definition of 'directory information' as defined in the policy, and as consistently applied to all people and entities requesting student information, does not include the release of information as requested by Mr. Berckes, except as noted in my 12/26/95 letter to Mr. Berckes....
Issue:
In his request for an opinion, Mr. Berckes asked the Commissioner to address the following issues:
Discussion:
In his first question, Mr. Berckes has, essentially, asked the Commissioner to determine the classification of certain data about students and parents/legal guardians which are maintained by Stillwater. To make that determination, it is necessary to examine Minnesota Statutes Section 13.32, educational data.
Section 13.32, subdivision 1, states that educational data are data about individuals maintained by a public educational agency or institution which relate to a student. Subdivision 2 (b) of Section 13.32 states that data concerning parents are educational data. Subdivision 3 of Section 13.32 states that except as provided in subdivision 5, educational data are private data and shall not be disclosed except in certain circumstances. (Subdivision 3 does go on to list the additional circumstances in which private data may be disclosed. One of those exceptions includes obtaining consent from the data subject.) However, it is the language of Section 13.32, subdivision 5, that relates to the issues raised by Mr. Berckes. Subdivision 5 states, Information designated as directory information pursuant to the provisions of United States Code, title 20, section 1232g and Code of Federal Regulations, title 34, section 99.37 which are in effect on July 1, 1993, is public data on individuals.
In 34 CFR, directory information is defined in Section 99.3 as:
Section 99.37 of 34 CFR discusses the conditions which apply to disclosure of directory information:
In summary, the effect of the interaction between state and federal law is that items of information properly designated under federal law as directory information become public data for purposes of Chapter 13. Proper designation means that a school district has performed the steps outlined in the federal code: (1) the district has designated the types of data it intends to treat as directory information; and (2) the district has given public notice to students and parents announcing (a) which data the district intends to treat as directory information, and (b) that students and parents may refuse to let the district treat those data as directory information. Obviously, if a parent or student notifies the school district that s/he does not wish certain data about that student to be directory information, those data would remain private. In addition, even if a school district has said it intends to treat certain data as directory information, those data cannot be released as public unless the district has completed all of the steps outlined in federal law.
In the present situation, Mr. Berckes has requested access to the first and last names of ninth grade students and the names of their parents/legal guardians. On the issue of directory information, the Stillwater School Board policy states:
Stillwater does not appear to have designatedthe names of parents/legal guardians as directory information. Thus, names of parents/legal guardians cannot be public data and are not availableto Mr. Berckes. However, Stillwater has designatedthe names and grade levels of students as directory information. Therefore, names and grade levels of students (unless any of those students and/or their parents have informed the district not to treat that data as directory), are public and availableto Mr. Berckes, as long as Stillwater has completed the notice requirement contained in federal law.
The second issue raised by Mr. Berckes in his opinion request is whether Stillwater is required to provide the requested data in a specific format. For example, Mr. Berckes requested that the data be formatted in a specific manner:
Section 13.03, subdivision 1, states that government entities must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. Section 13.03, subdivision 3, states that upon request, a person shall be permitted to inspect and copy public government data. Section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained, or disseminated by a government entity. Chapter 13 clearly requires government entities to provide access to public data which those entities collect, create, receive, etc. However, there is no provision in Chapter 13 which imposes a general duty on government entities to create data or to provide data in a particular format specified by a requestor. Therefore, in regard to Mr. Berckes' request, Chapter 13 imposes no obligation on Stillwater to provide the students' names in any format in which they do not currently exist. Stillwater may choose to arrange the data in the manner desired by Mr. Berckes. However, pursuant to Chapter 13, Stillwater is not required to do so. Opinion:Based on the correspondence in this matter, my opinion on the issues raised by Mr. Berckes is as follows:
Signed:
Elaine S. Hansen
Dated: February 5, 1996
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Educational data
Directory information