Issue:

In the request for an opinion, Mr. Knutson and Ms. Kenney asked the Commissioner to address the following issue:

Discussion:

The Issue Statement poses a preliminary issue that must be resolved. That issue is whether the District is required to respond to any request for data made according to section 13.32, subdivision 5a. The Commissioner has previously addressed the requirement that a government entity provide a response to a request for access to government data. See, for example, Advisory Opinions 00-040, 00-041, 00-059 and 01-023. Therefore, the District must provide a response to a request for data made according to section 13.32, subdivision 5a.

Data about students in public schools is governed by both federal and state law. The federal law, the Family Educational Rights and Privacy Act, 20 U.S.C. section 1232g, (FERPA) provides that data about students are private. This classification of the data is echoed in Minnesota Statutes, section 13.32. FERPA also gives parents access to their children's school data and the ability to determine who receives access to that data. 20 U.S.C. section 1232g (a)(1)(A) and (b).

Congress did provide some exceptions so that certain disclosures could be made and those are detailed in the federal regulations that are found at 34 CFR part 99. Minnesota has generally followed these exceptions and the state provisions can be found within Minnesota Statutes, section 13.32. The Minnesota Legislature's ability to act in the area of access to and dissemination of school data is limited by the provisions of FERPA and the accompanying regulations.

During the 2001 session, the Legislature enacted Minnesota Statutes, section 13.32, subdivision 5a. The language became effective August 1, 2001 and it reads:

Subd. 5a. [MILITARY RECRUITMENT.] A secondary institution shall release to military recruiting officers the names, addresses, and home telephone numbers of students in grades 11 and 12 within 60 days after the date of the request, except as otherwise provided by this subdivision. A secondary institution shall give parents and students notice of the right to refuse release of this data to military recruiting officers. Notice may be given by any means reasonably likely to inform the parents and students of the right. Data released to military recruiting officers under this subdivision:
(1) may be used only for the purpose of providing information to students about military service, state and federal veterans' education benefits, and other career and educational opportunities provided by the military; and
(2) shall not be further disseminated to any other person except personnel of the recruiting services of the armed forces.

The issue which now must be addressed is whether the Minnesota Legislature has the ability to mandate the disclosure of the specified data to military recruiters given the limitations imposed by FERPA.

FERPA does provide a mechanism by which some data about students may be made public. This type of public data is known as directory information. 20 U.S.C. section 1232g (a)(5) and 34 CFR section 99.37. FERPA provides that the school board must determine what data elements about students are not considered harmful or an invasion of privacy if disclosed. 20 U.S.C. section 11232g (a)(5). The data elements that the U.S. Department of Education has offered as examples to a school board for consideration as directory information include:

student's name, home address, telephone number, email address, photograph, date and place of birth, field of study, dates of attendance, grade level, enrollment status, participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees, honors and awards received and the most recent educational agency or institution attended.

34 CFR section 99.3 (definition of directory information, as amended and effective August 7, 2000).

The school board is free to choose which of the data elements it wants to designate as directory information, to make its determination of what constitutes directory information once each year, and notify parents of its decision. 34 CFR section 99.7. Parents are also given the option to have the directory information about their children not be public and the school district must have a way to honor such a request. 34 CFR section 99.37. Directory information is public data in Minnesota and must be provided to anyone who asks. Minnesota Statutes, section 13.32, subdivision 5.

Access to student data by military recruiters is an issue that has received attention in Congress for many years. Congress has addressed the issue in 10 U.S.C. section 503 and there is a difference in the access recruiters are granted to students in higher education institutions and those in secondary schools (i.e. 9-12 grades). The Commissioner will focus on those provisions relating to students in secondary schools.

Section 503 provides that the Secretary of Defense may collect directory information about students 17 years of age or older or in the 11th grade or higher. 10 U.S.C. section 503(b)(1) (emphasis added). Paragraph (b)(6) further provides that the Secretary cannot require a school to furnish directory information. In 2000, Congress amended section 503 to adopt the definition of directory information used in FERPA. In other words, the data elements that are available to the Secretary of Defense are those data elements designated by the local school board as directory information.

The issue presented by the Minnesota Legislature's adoption of section 13.32, subdivision 5a is that by using the word shall, it appears that school districts are required to provide the names, addresses and telephone numbers of students in the 11th and 12th grades to military recruiters. FERPA says that those elements of data are available only with the consent of the parents or if they are part of what the school board has designated as directory information. When, as is the case here, federal law has been adopted in a subject area, federal law controls if state law is in conflict. Forster v. R J Reynolds Tobacco Co., 437 N.W.2d 655,658 (Minn. 1989) citingSilkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984).

The District has indicated that its school board has, of the three data elements in section 13.32, subdivision 5a, designated student name and address as directory information. The District has also provided the notice to parents of their right to refuse release of student data to military recruiters. The District has a request from a military recruiter for data about 11th and 12th graders. To respond to the request, the District may provide those data that meet all the following criteria:

1) data elements designated as directory information pursuant to 34 CFR section 99.37;
2) data about those students whose parents have not chosen to generally restrict access to directory information about their children pursuant to 34 CFR section 99.37; and
3) data about those 11th and 12th graders whose parents have not refused release of data to military recruiters pursuant to Minnesota Statutes, section 13.32, subdivision 5a.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Knutson and Ms. Kenney is as follows:

Signed:

David F. Fisher
Commissioner

Dated: September 28, 2001