Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation.

Facts and Procedural History:

In the fall of 1992, X's parents were attempting to move him from Family Focus to a program operated by the Minneapolis Public Schools. To plan for the move, the parents requested a copy of X's records on or about November 23, 1992. According to Ms. Kerr this request was received by District 287 on November 30, 1992. After some further discussions with the District, including assistance from the PACER Center, the District sent the records on January 8, 1993, and the parents received the copy on January 12, 1993. (In the actual words of her letter Ms. Kerr refers to the District as having claimed to having sent the copy on January 8, 1992.)

Subsequently, X's parents complained to the state Department of Education about the timing problems associated with receiving copies of X's records and effectuating transfer of copies of those records to the Minneapolis School District. After an investigation, the Department of Education determined, in a report issued on April 21, 1993, that no violations of federal law had occurred when District 287 had provided a copy of the records to X's parents within 45 days and District 287 provided a copy of the records to the Minneapolis Schools within a reasonable time.

Ms. Kerr then asked for a variety of opinions on issues that arose out of the incidents she described. A number of these issues involve the Department of Education and are being dealt with in a separate opinion.

In response to Ms. Kerr's request for an opinion, PIPA, on behalf of the Commissioner wrote to Dr. Ronald Carter, superintendent of District 287, and to Mr. James Smith, superintendent of District Number 277, which is X's home district. The purpose of these letters was to inform the school districts of Ms. Kerr's request for an opinion, to acquaint them with the Commissioner's authority to issue opinions, to ask them to provide any information to explain the actions taken or not taken and to inform them of the date on which the Commissioner was required to issue this opinion.

On November 9, 1993, PIPA received a letter from Ms. Nancy E. Blumstein, attorney for District 287. Although Ms. Blumstein offered information to describe and explain District 287's actions in this matter, the primary thrust of her letter was to argue that the Commissioner is being asked to issue an opinion which is outside the scope of the Commissioner's authority and therefore it would be improper for the Commissioner to issue an opinion.

The information offered by Ms. Blumstein included the following. The District's position was that it denies that it violated Minnesota Statutes Section 13.04 and 13.05. She pointed out that District 287 has prepared and distributed to parents a document regarding a student's access to student records. She also referred to another information sheet, which she described as prepared by the Minnesota Department of Education, which also describes a student's right to documents. Both documents were included as enclosures to her letter. She stated that the documents were also provided to students during the school year. In regard to the question as to whether the District's response to X's parents' requests for copies of records was timely, she did not offer any explanatory information but argued that an answer to this question involved a factual determination that the Commissioner is not, in her view, equipped to make.

Issue:

Discussion:

Before offering an opinion on the specific issues raised by Ms. Kerr, the basic question of the authority of the Commissioner in this matter must be addressed. Ms. Blumstein has raised this same issue in an opinion involving other clients of both her and Ms. Kerr. The Commissioner's response to that issue is that she does have the authority to issue an opinion in matters such as these. For the full explanation of the Commissioner's position, see Advisory Opinion 93-004.

For purposes of clarity, Ms. Kerr's statement of the issue is divided into two questions and referred to here as Issue 1 and 2. In the original statement of the issue, Ms. Kerr asked whether both District 277 and District 287 were in violation of statutory provisions. It appears now that only the actions of District 287 are in question and only those actions are the subject of the Commissioner's opinion. The issues relating to the Minnesota Department of Education will be dealt with in a subsequent opinion. The Department has asked the Commissioner to provide it with additional information and additional time to respond to those issues and the Commissioner is honoring that request.

Issue 1

Did District 287 fail to provide X's parents with the explanation of their rights to gain access to data as required by Minnesota Statutes Section 13.05, subdivision 8?

Minnesota Statutes Section 13.05 requires responsible authorities in each government entity subject to Chapter 13 of Minnesota Statues, the Minnesota Government Data Practices Act, and hereinafter the MGDPA, to prepare a written public document that sets forth the rights of subjects of data, pursuant to Section 13.04, and that describes the specific procedures in effect in the entity that an individual must follow to gain access to public or private data the entity is maintaining about them. Ms. Kerr alleges that District 287 has not provided her clients with any such document.

In response, Ms. Blumstein describes and offers copies of documents that are in use in District 287. She states that these documents are made available to both students and parents. The documents in question are entitled as follows. The first document is a two sided threefold brochure which contains the District 287 logo and the title Student Records and the further explanation that this is referenced in the Special Education Section . The second document, that Ms. Blumstein referred to as being prepared by the Minnesota Department of Education, contains general information about the right of parents to look at education records about their children. The District 287 brochure contains fairly detailed information about where education records are maintained and identifies school district personnel by name as being available for parents to contact to actually gain access to records. The brochure also contains a notice that copies of policies and procedures concerning the District 287 recordkeeping system can be obtained from the District's special education office.

Neither Ms. Kerr nor Ms. Blumstein, has offered specific information that would conclusively establish that this brochure was actually received or not received by X's parents. The actual requirement of Minnesota Statutes Section 13.05, subdivision 8 is that a public document be prepared by the District that describes data subject rights and data access procedures. The District 287 brochure meets that requirement and it appears that it was, according to Ms. Blumstein, either provided to parents and students by the District or was available on demand by parents as a public document available from the District Therefore, if X's parents were not provided with a copy by the District, they could have received a copy of it by requesting it as a public document.

Issue 2

Did the failure of District 287 to provide X's parents with a copy of X's education records within the timelines of Chapter 13 constitute a violation of Chapter 13?

Minnesota Statutes Section 13.04, subdivision 3 provides that, upon his or her request, a data subject must be provided with access to public or private data concerning that subject. The subdivision goes on to state that the responsible authority shall comply with a data subject's request for access . . . immediately, if possible, . . . or within five days of the request, excluding Saturdays, Sundays and legal holidays if immediate compliance is not possible. The subdivision goes on to state that a responsible authority may gain an additional five days to comply with a request, if the responsible authority cannot for good reason comply within the first five days, by informing the data subject of the need for additional time. This five day requirement covers both requests to inspect data and requests to receive copies of data.

According to Ms. Kerr's recitation of the facts in this matter, District 287 received X's parents request for X's school records on November 30, 1992. X's records are private educational data, as determined by Minnesota Statutes Section 13.32 and are therefore subject to the five day rule as set forth by Minnesota Statutes Section 13.04, subdivision 3. According to Ms. Kerr, the District provided the records to X's parents on January 12, 1993. If the date of receipt of the request is not counted, the District took 43 calendar days to honor X's parents' request. When weekend and holiday days are removed from the total, the District took 28 working days to respond to X's parents' request. Clearly, this is not the timeframe contemplated by the requirements of Section 13.04, subdivision 3 of the MGDPA.

Among the documents provided by Ms. Blumstein is the summary of parent's rights that she says was prepared by the state Department of Education. This document does state that a school district can never take more than 45 days to respond to a request for access to student records. Although this appears to be a correct statement of federal law regarding access to education records, it is clearly not what is required by the MGDPA. On this point, the MGDPA is not in conflict with federal law because state law gives greater rights to students and their parents. In this case, the right is more timely access to data concerning the student. Given the clear requirement of the MGDPA, a requirement that has been a matter of state law since 1977, it is unclear why the District would choose to have its internal procedures guided only by federal law. (See Minnesota Session Laws 1977. Chapter 375.) The District has chosen not to offer any information on that point, other than the document previously described, so the Commissioner can only make a conclusion based on that document and the information provided by Ms. Kerr.

Opinion:

Based on the correspondence in this matter, subject to the qualifications discussed above, my opinion on the issues raised by Ms. Kerr are as follows:

Signed:

Terry L. Bock for
Debra Rae Anderson
Commissioner

Dated: November 12, 1993