Discussion:

One, M met with E for counseling sessions in the fall of 1992 (see Exhibit 2).

Two, E made notes that s/he subsequently shredded sometime between the summer of 1993 and October of 1995 (see Exhibit 2).

Three, a Rice County Suspected Child Abuse/Neglect Report was filed with Rice County on October 28, 1992 (see Exhibit 5).

Four, Rice County interviewed M on school property on October 29, 1992, (see Exhibit 5).

Five, according to the Child Protection Assessment Report, dated October 29, 1992, maltreatment was not determined and no protective actions were needed (see Exhibit 6).

Six, M and M's father made a request for access to all data about them on May 24, 1996 (copy of request attached to Mr. Naugle's opinion request).

The first issue raised by Mr. Naugle is whether E inappropriately disseminated data about M and M's father to M's mother. Based on information in both E's deposition and in M's mothers' affidavit, it is apparent that E disseminated data about M and M's father to M's mother. However, it is not absolutely clear whether the data came from E's notes or from a copy of the Suspected Child Abuse/Neglect Report retained within ISD #721. In the case of E's notes, because the data contained therein were created and maintained by ISD #721, those data were government data and were, therefore, subject to the requirements of Chapter 13.

In the case of the Suspected Child Abuse/Neglect Report, there is no dispute that E (a mandatory reporter pursuant to Minnesota Statutes Section 626.556) made a report of the alleged abuse. However, there is some question as to whether ISD #721 actually retained a copy of the written Report. Because Ms. Skinner presented no arguments to the contrary, and because the language that appears in the Report was used verbatim by E when s/he gave her/his deposition, the balance of this opinion will presume that E completed, in writing, a Rice County Suspected Child Abuse/Neglect Report and provided it to Rice County Social Services. Based on that assumption, the data contained in the Report are government data, and, therefore, are subject to the requirements of Chapter 13.

Regardless of whether the source of the dissemination was E's notes or the Suspected Child Abuse/Neglect Report, the disclosure was not appropriate. First, if the source was E's notes, the data contained therein are private educational data (see discussion relating to Issue 2 of this Opinion) and are, therefore, accessible to the data subject(s). Thus, ISD #721 had no authority to disseminate data about M or M's father to M's mother.

Second, if the source was the Suspected Child Abuse/Neglect Report, pursuant to Minnesota Statutes Section 626.556, subdivision 7, the report is confidential. Therefore, none of the data contained in that report are accessible to any of the data subjects. (See Section 13.02, subdivision 3.)

In her response to this issue, Ms. Skinner is in agreement that the data disseminated to M's mother about M and M's father were, indeed, government data collected, created, or maintained by ISD #721. She stated, The School District did not release data contained in a Rice County Suspected Child Abuse/Neglect Form but instead disseminated educational data' about a student or former student.

Educational data are classified pursuant to Section 13.32. Educational data are defined as data on individuals maintained by a public educational agency or institution or by a person acting for the agency or institution which relates to a student. (See Section 13.32, subdivision 1 (a).) In addition, pursuant to Section 13.32, subdivision 2 (b), data concerning parents are educational data. Generally speaking, educational data are private data on individuals. In the case of educational data concerning minors, both parents can gain access to those data unless there is a state law, court order, or legally binding instrument which provides to the contrary. (See Section 13.02, subdivision 8, and Minnesota Rules Section 1205.0500, subpart 2(B).)

In her response, Ms. Skinner noted that the Family Educational Rights and Privacy Act (FERPA) contains exceptions which give parents the right of access to their children's educational records, even those children are over the age of 18. She wrote, One exception provides that consent is not required to disclose educational records to parents of dependent students as defined by section 152 of the Internal Revenue Code of 1986 (emphasis added) 1232g(b)(1)(H). As Ms. Skinner discussed, this issue was addressed in Commissioner of Administration Advisory Opinion 96-009. Ms. Skinner further stated, Therefore the School District was permitted to release educational data about M to either parent without [his/her] consent.

There are two problems with Ms. Skinner's argument. One is she never explicitly stated that M was a dependent child of M's mother. The fact that ISD #721 could, under federal and state law, disseminate private data about an adult dependent student to his/her parents does not establish that M was a dependent of his/her mother for the purpose of the Internal Revenue Code. Two is that neither Ms. Skinner nor Mr. Naugle presented any information to suggest that ISD #721 made any attempt to validate a dependent student status prior to E's disseminating data about M and M's father to M's mother. Therefore, the Commissioner cannot agree with Ms. Skinner's argument that the disclosure of the private data about M was appropriate. In any case, E could not disseminate private data about M's father to M's mother.

The crux of the second issue of this Opinion revolves around whether, as Mr. Naugle asserts, E's notes related to M's allegations of abuse are government data. If those notes are government data, ISD #721 is subject to standards regarding the retention of those data. If the notes are not government data, there are no such obligations.

In her comments, Ms. Skinner stated that FERPA excludes certain data from the definition of educational records, and, therefore, from government data. She cited 20 U.S.C. Section 1232g(a)(4) which, in part, provides for one such exception: Records of instructional, supervisory and administrative personnel and educational personnel ancillary to those persons that are kept in the sole possession of the maker of the record, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record. Minnesota state law relating to this specific issue is more restrictive than federal law and provides that the same exclusion applies only to the records of instructional personnel. (See Section 13.32, subdivision 1(a).)

The key, therefore, appears to turn on whether E, in her/his professional capacity, is considered to be instructional personnel. Ms. Skinner refers to E as a school counselor and E, in his/her deposition, refers to her/himself as a secondary school counselor. It is the Commissioner's determination that a school counselor is not instructional personnel because a school counselor does not fill an instructional role, as would a teacher. Thus, because the data created by E do not qualify for the exception provided in Section 13.32, subdivision 1 (a), those data are government data.

Mr. Naugle's original question is whether the rights of access of M and M's father were violated by the destruction of E's notes. Pursuant to Minnesota Statutes Chapter 138, government entities may dispose of government records only as provided by that Chapter. (See Section 138.163.) Further, pursuant to Section 138.17, government entities must seek the approval of the Records Disposition Panel before they may dispose of government records.

Given that E's notes do not qualify as notes of instructional personnel, the appropriateness of the destruction of those notes depends upon how ISD #721 has met its obligation under Section 138.17. If destruction of those notes was permitted by a records retention schedule prepared and adopted by ISD #721, and approved by the Records Disposition Panel, then the destruction was appropriate. If a records retention schedule covering destruction of these notes was not prepared or adopted, then the destruction was not appropriate.

If a government entity inappropriately disposes of data which document official activities, the rights of individuals to gain access to those data have been violated. An improper destruction of E's notes would have made it impossible for M and M's father to gain access to private data as is their right under Section 13.04.

The third issue raised by Mr. Naugle is whether ISD #721 violated Section 13.04, subdivision 3, by not providing M and M's father access to certain data upon their request. As previously discussed, M and M's father requested, from Rice County Social Services, data relating to the alleged incident of abuse. Among the documents they received were a copy of the Rice County Suspected Child Abuse/Neglect Report and a copy of the Rice County Child Abuse Interview on School Property notification form. When M and M's father requested access to data from ISD #721, they did not receive copies of these documents.

Based on the facts as submitted, it is unclear whether ISD #721 kept a copy of the Report filed by E. If the District is still maintaining a copy, pursuant to Minnesota Statutes Section 626.556, subdivision 7, the Report is confidential. Therefore, ISD #721 has not violated the rights of M and M's father by not providing them with access.

There is also a possibility that if ISD #721 kept of copy of the Report, the Report was destroyed before M and M's father made their request. In such a situation, pursuant to Minnesota Statutes Section 626.556, subdivision 11c (c), the data can be destroyed only if the agency conducting the investigation has so ordered. It is unclear if Rice County has ordered the destruction of these records.

In response, Ms. Skinner argued that the data in the Suspected Child Abuse/Neglect Report are not educational data subject to disclosure by ISD #721. She also stated that the Report is a document prepared by Rice County, and that ISD #721 possesses no authority to disseminate the county records.

If, indeed, ISD #721 does retain a copy of the original Report, Ms. Skinner is incorrect to assert that the data are not educational data. As Section 13.32, subdivision 1, states, all data on individuals maintained by public educational institutions are educational data. While it is necessary to consult Section 626.556 regarding any specific disclosure/dissemination requirements, any data maintained by ISD #721 are still considered to be educational data. Therefore, if Section 626.556 authorizes disclosure, ISD #721 does have authority to release data in its possession.

In regard to the issue of the Rice County Child Abuse Interview on School Property notification form, or data therein, the specific authority to disseminate those data is found in Section 626.556, subdivisions 10 (d) and 11c (c). Subdivision 10 (d) states that although the contents of the notification form are classified as private data, prior to the recipient of the notice being notified, in writing by either the local welfare or law enforcement agency that the investigation or assessment has been concluded, schools officials may not disclose the contents of the notification. Subdivision 11c (c) states that all records regarding a report of maltreatment, including any notification of intent to interview which was received by a school, must be destroyed by the school when ordered to do so by the agency conducting the assessment or investigation.

As in the case of the Suspected Child Abuse/Neglect Report, is it unclear if ISD #721 is still in possession of a copy of the interview notification form. If the District is in possession of the notification form, and the District was notified by Rice County or the appropriate law enforcement agency that the investigation/assessment was concluded, the data in the notification form are private and are accessible to the data subjects. If ISD #721 is in possession of the notification form, but did not receive notice from Rice County or the appropriate law enforcement agency that the investigation/assessment was concluded, the data in the notification form are confidential and not accessible to the data subjects.

If, however, ISD #721 has destroyed the notification form, the destruction was appropriate only if it was so ordered by Rice County.

Ms. Skinner's arguments regarding the notification form are the same as she made regarding the Suspected Child Abuse/Neglect Report. (See above.)

In conclusion, if ISD#721 is in possession of the Suspected Child Abuse/Neglect Report, the data are confidential and the rights of M and M's father were not violated by their not having received access. If the District destroyed the Report, and such destruction was appropriate, the rights of M and M's father have not been violated. If, however, the District destroyed the Report without a notice of destruction under Section 626.556, subdivision 11c (c), the rights of M and M's father have been violated.

If ISD #721 is in possession of the notification form, and the District received notice that the assessment had concluded, the data contained in the form are private and should be accessible M and M's father. If ISD #721 is in possession of the notification form and did not receive notice that the assessment had concluded, the data are confidential and the rights of M and M's father have not been violated. If, however, ISD #721 destroyed the notification form prior to having been ordered to do so by Rice County, the District has violated the rights of M and M's father to gain access to those data.

The fourth issue raised by Mr. Naugle is whether ISD #721 violated Section 13.05, subdivision 5, in regard to data contained in the following documents: E's notes, a Rice County Suspected Child Abuse/Neglect Report, and a Rice County Child Abuse Interview on School Property notification form. Pursuant to Section 13.05, subdivision 5, government entities are obligated to establish procedures to assure that all data on individuals are accurate, complete, and current for the purposes for which those data were collected.

In regard to E's counseling notes which relate to her/his counseling sessions with M, Ms. Skinner wrote, Since the school counselor's notes are not deemed to be private educational data, the requirements of Minn. Stat. 13.05, subd. 5 do not apply. As per the discussion relating to the Issue 2 of this Opinion, the Commissioner respectfully disagrees with Ms. Skinner.

However, because E shredded his/her notes, it is impossible for the Commissioner to determine whether ISD #721 did or did not comply with the requirement that it keep its data accurate, complete, and current.

In regard to the Rice County Child Abuse/Neglect Report and the Rice County Child Abuse Interview on School Property notification form, Ms. Skinner wrote, ...the School District has no duty or obligation to assure that data is accurate which is compiled and maintained by another government agency. It is the obligation of Rice County to govern the accuracy of its own data. The Commissioner agrees with Ms. Skinner. In this instance, the purpose of collecting the data contained in the Report was to communicate that maltreatment had allegedly occurred. The purpose of collecting the data contained in the notification form was to communicate to the District that an interview would be occurring. Because none of the data in either of these two documents can be updated in relation to the purposes for which they were collected, ISD #721 does not bear responsibility for maintaining the accuracy, completeness, or currentness of the data in these documents.

In regard to the fifth issue, it is necessary to consult Section 13.04, subdivision 3, which, in relevant part, states:

Mr. Naugle provided to the Commissioner a copy of the written request for access to data made by M and M's father. The request is dated May 24, 1996, and was undisputedly hand-delivered to ISD #721 on that same day. Mr. Naugle stated that the District's response was postmarked June 7, 1996, and that ISD #721 did not request an extension of time in which to respond to the requests.

Ms. Skinner conceded that the five day period expired on June 3, 1996, and that ISD #721 provided copies of the documents by mail on June 7, 1996. She wrote, While the School District inadvertently failed to notify [M's father] that it could not respond within the five day period, it did provide the information on June 7, 1996 within the additional five day period allowed by statute. Therefore, it is clear the School District substantially complied with the statutory mandates.

Section 13.04, subdivision 3, explicitly states that if an entity is unable to comply with a request for access to data (regardless of whether the request is for copies or to inspect) within five working days, the entity must so inform the data requestor. In the present situation, ISD #721 did not inform M and M's father that a response could not be issued within five working days of May 24, 1996. Therefore, ISD #721 has not complied with the requirements of Section 13.04, subdivision 3.

Opinion: