Issues:

Discussion:

Section 13.32 provides that most data about students created, collected, and maintained by public educational institutions are classified as private and, subject to certain exceptions, cannot be disseminated without a court order or unless the data subject (in the case of a minor, this includes parent(s), see Section 13.02, subdivision 8) has given informed consent. Likewise, pursuant to FERPA, educational records about students are not public and, in general, cannot be disclosed, subject to certain exceptions, unless consent has been obtained from the student and/or his/her parent(s). (See 34 CFR Section 99.30.) At issue in this opinion is whether two of the specific exceptions in Section 13.32 provide for release to law enforcement officials of the types of data described by Ms. Maloney.

One of the Section 13.32 exceptions discussed by Ms. Maloney is the health and safety exception (see Section 13.32, subdivision 3 (d)). It provides that private educational data may be disseminated (without prior consent or court order) to disclose information in health and safety emergencies as per FERPA and its accompanying rules. The federal rules, portions of which Section 13.32 adopt by reference, state that an educational institution may disclose personally identifiable information from an education record to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. The rules also state that the language is to be strictly construed. (See 34 CFR Section 99.36.)

In her request, Ms. Maloney wrote:

As stated by Ms. Maloney, one of the sets of data in question is that relating to actual or suspected criminal activity, such as an assault or possession of illegal drugs, which occurs at school, on school property, or at a school-related event. Although the term health and safety emergency is not specifically defined in either state or federal law, it seems reasonable that it involves a crisis-type situation in which a release of data would serve to protect individuals from imminent harm, etc.

According to a June 1997 joint report prepared by the United States Departments of Justice and Education, this seems be an accurate interpretation. The joint report states, The health or safety emergency provision is a commonsense acknowledgment that there may be situations when the immediateneed for information to avert or diffuse certain unusual conditions or disruptions requires the release of information. (Emphasis added.) (See page 7 of Sharing Information: A Guide to the Family Educational Rights and Privacy Act and Participation in Juvenile Justice Programs, U.S. Department of Justice and U.S. Department of Education, June 1997. The joint report further states:

Thus, it seems reasonable that certain data relating to actual or suspected criminal activity which occurs at school, on school property, or at a school-related event, could be released by a school district pursuant to the health and safety emergency provision. Common sense dictates that any data disclosed under this provision be related to a crisis-type situation.

However, the release of the other two sets of data described by Ms. Maloney, i.e., data identifying students who exhibit certain hand signals or wear certain fashions, or who are suspected of using illegal chemicals, seems to be a different matter. Such a request by law enforcement does not appear to be related to preventing or dealing with an immediate health or safety issue; rather, it appears law enforcement is attempting to compile a list of students (with the help of school officials) who may be involved in some type of illegal activity or may merely be suspected of being involved in illegal activity. The dissemination of this type of data, in the situation as described by Ms. Maloney, does not appear to be allowable under the health and safety provision of either state or federal law.

The second Section 13.32 exception Ms. Maloney discussed was enacted during the 1997 Legislative Session. The language provides an additional situation in which educational data can be disclosed in cases where informed consent has not been obtained. Section 13.32, subdivision 3 (i), states:

This new language in state law operates in conjunction with an amendment made to FERPA in 1994. (See 34 CFR Section 99.38.)

However, the 1997 Minnesota Legislature went a step beyond the federal change by enacting additional language which attempts to more narrowly define the types of data that can be released pursuant to Section 13.32, subdivision 3 (i). Section 13.32, subdivision 8, states:

In addition, the 1997 Legislature enacted a provision which defines juvenile justice system. The new language states, Juvenile justice system' includes criminal justice agencies and the judiciary when involved in juvenile justice activities. (See Section 13.32, subdivision 1 (b).)

In her request, Ms. Maloney wrote:

Again, it appears the joint report may provide some general assistance in analyzing the operation of Section 13.32, subdivisions 3 (i) and 8. The joint report states:

It is the Commissioner's opinion that the newly adopted language is meant to give school districts the authority to release data that relate to a specific student who appears to be at risk of becoming an adjudicated delinquent. As stated above, the intended purpose of any release is to effectively serve or provide some benefit or assistance to the involved juvenile. Thus, the data described by Ms. Maloney can be disseminated pursuant to the new language in Section 13.32 only if the purpose of such a disclosure will assist and/or serve the student.

However, even if a release of the data meets this first criterion, there are two additional requirements that must be met. First, law enforcement officials to whom the data will be released are to be involved in juvenile justice activities. (See Section 13.32, subdivision 1 (b).) Second, only the following types of data about a student can be released: full name; home address; telephone number; date of birth; school schedule; attendance record; and photographs. Further, only the following data about a student's parent(s) can be released: name(s), home address(es), and telephone number(s). (See Section 13.32, subdivision 8.)

Regarding the first set of data described by Ms. Maloney, i.e., a student is engaging in actual or suspected criminal activity, the Commissioner has already dealt with the issue of whether Section 13.32 provides the District with authority to release these data. (See pages 3 and 4 of this opinion relating to the health and safety emergency provision.)

Regarding a possible dissemination of the second and third sets of data described by Ms. Maloney, i.e., data identifying students who are being targeted for non-criminal behavior, such as wearing certain fashions, using certain hand gestures, and/or appearing to be under the influence of a chemical substance, it does not appear that Section 13.32, subdivision 3 (i), provides authority for such a release. It is not clear how a general release of data about students who are suspected of being involved in gang activity or using illegal chemicals will individually serve those students.

Furthermore, the school district's release of a list of students that exhibit certain characteristics would in itself constitute a release of data beyond that contemplated by the Legislature in Section 13.32, subdivision 8. For example, Student A frequently falls asleep in class. Law enforcement officials make a request for data about all students who fall asleep on a regular basis - as an indicator of chemical usage. Student A's school district determines that a release of these data meets the criteria set forth in Section 13.32, subdivision 3 (i). The problem with this scenario is that a release of any information about Student A will also disclose the fact that s/he falls asleep in class; this information is not included in Section 13.32, subdivision 8, and cannot, therefore, be released.

The Commissioner believes the Legislature will address this issue and provide some clarification as to its intent in enacting Section 13.32, subdivision 3 (i).

Opinion:

Signed:

Elaine S. Hansen
Commissioner

Dated: December 19, 1997