Opinion Library

To return to this list after selecting an opinion, click on the "View entire list" link above the opinion title.

RSS feed

Advisory Opinion 96-007

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:

Enclosed you will find a request for the first and last names of the students and the names of their parent(s) or legal guardian(s), in your school district for the

ninth

grade for this current school year of 1995/1996. I would like to have this request in list form with one individual set for each of the grades identified by the grade. I would like to have this printed in alphabetical order by students last name with the parent(s) or legal guardian(s) name printed on the same line behind the students name or in a obvious manner that shows the relationship of student and parent(s) or guardian(s).

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 response to your December 19, 1995, request for information on students in our school system, please be advised that our School Board policy drafted pursuant to MSA 13.32, does not permit the release of a student's home address nor name and address of the student's parents or guardian without the consent of that parent or guardian....Please advise if you wish to have us prepare a list of the names of all 9th grade students for you.

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:

Are the first and last names of Stillwater Public School ninth grade (1995 school year) students and their parents/legal guardians public data?
Is a school district required, by Chapter 13, to provide requested data in a format specified by the requestor?

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:

...information contained in an education record of a student which 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, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended.

Section 99.37 of 34 CFR discusses the conditions which apply to disclosure of directory information:

(a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the agency or institution of:

(1) The types of personally identifiable information that the agency or institution has designated as directory information;

(2) A parent's or eligible student's right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and

(3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as 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:

[Directory Information] Includes the following information and is considered public data: the student's name, major field of study, participation in activities, weights and heights of members of athletic teams, dates of attendance, grade levels completed, degrees and awards received, and other similar information. It does not include religion, race, color, age, nationality, address, or phone number.

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:

I would like to have this request in list form with one individual set for each of the grades identified by the grade. I would like to have this printed in alphabetical order by students last name with the parent(s) or legal guardian(s) name printed on the same line behind the students name or in a obvious manner that shows the relationship of student and parent(s) or guardian(s).

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:

For purposes of this opinion, the Commissioner assumes that Stillwater has, in compliance with federal law, designated names and grade levels of students as directory information. Therefore, given that Stillwater hasdesignated student names and grade levels as directory information, those data are public. Given that Stillwater has notdesignated the names of parents/guardians as directory information, those data are not public.
Chapter 13 does not impose a general duty on government entities to create data. In this situation, Stillwater is not required, by Chapter 13, to provide data in a format in which they do not exist.

Signed:

Elaine S. Hansen
Commissioner

Dated: February 5, 1996

Educational data

Directory information