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Advisory Opinion 97-028

July 3, 1997; Minnesota Department of Children, Families, Learning

7/3/1997 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 person who requested this opinion and the response from the government entity with which the person 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 classified as not public, are available for public access.

On April 21, 1997, the Commissioner received a request for an advisory opinion dated April 17, 1997, from Robert Wedl, Commissioner of the Minnesota Department of Children, Families, Learning, (DCFL). After discussion and clarification of the issues raised, four issues were agreed upon.

A summary of the facts as presented by Commissioner Wedl surrounding this matter is as follows. The Star Tribune has requested access to the Department's Minnesota Automated Reporting Student System (hereinafter MARSS ) database, excluding individual names and social security numbers. The MARSS database is a database on every individual public school student in the state of Minnesota. Commissioner Wedl wrote:

Included among the many data elements on each student in the MARSS database are such uniquely identifying characteristics as date of birth, racial ethnic background, the school district attended, the school building attended, and if so, whether in or out of the classroom, and what percentage of time if out of the classroom, whether and what kind of disability the student has, whether the student has limited English proficiency, whether the student received limited English proficiency services and identification of every student's first language.

Samples of the MARSS records were provided.

Commissioner Wedl further wrote:

Because this database contains such a breadth of uniquely identifying data on each individual student, we believe that the database as w hole[sic] is private because it is not summary data as defined in Minn. Stat. 13.01, subd. 19. In addition, we are concerned that releasing the database with only the names and social security number removed could allow the identifies [sic] of many students to be easily traced in violation of the Family Education Rights and Privacy Act (FERPA).

Additional information provided at the request of the Commissioner revealed that prior to Fiscal Year 1997, districts were instructed to include social security numbers as part of the student identifier. Mr. Wedl further stated, This year, schools are instructed to reconstruct all student identifier numbers so as to not include the social security number. At this point in time, it is possible that many students still have their social security number embedded in their student identifier.



Issues:

In his request for an opinion, Commissioner Wedl asked the Commissioner to address the following issues:
  1. Is the MARSS database, with student names and social security numbers removed, summary data under Minn. Stat. 13.01, subd. 19?
  2. If the MARSS database, with student names and social security numbers removed, is not summary data, is it otherwise public?
  3. If the MARSS database, with student names and social security numbers removed, is not summary data, must the Department of Children, Families, and Learning prepare a summary version of the database for the Star Tribune?
  4. If the Department does prepare such a summary version of the database, may it require the Star Tribune to pay for the cost of doing so?


Discussion:

For clarification purposes, the discussion of the above issues proceeds under the assumption that if the MARSS database is released, the corresponding legend will also be released.

In addition, it is also acknowledged that while directory information may be a factor in determining the classification of the data in the MARSS database, the Commissioner has no knowledge of which data have been so classified by the Department or by each of Minnesota's school districts. Therefore, the conclusions in this opinion have been reached without considering the possible effects of any data classified as public pursuant to the state and federal directory information provisions.

The first issue raised by Commissioner Wedl is whether the data requested by the Star Tribune (specific data elements about each student without the corresponding names and social security numbers) are summary data, as defined by Minnesota Statutes Chapter 13. Minnesota Statutes Section 13.02, subdivision 19, defines summary data as statistical records and reports derived from data on individuals but in which individuals are not identified and from which neither their identities nor any other characteristics that could uniquely identify an individual is ascertainable. In addition, Minnesota Rules Section 1205.0200, subpart 16, defines summary data as:

[d]ata which has been extracted, manipulated, or summarized from private or confidential data, and from which all data elements that could link the data to a specific individual have been removed. Summary data includes, but is not limited to, statistical data, case studies, reports of incidents, and research reports. Once it is summarized from private or confidential data, summary data remains summary if the responsible authority maintains any list of numbers or other data which could uniquely identify any individual in the summary data physically separated from the summary data and the responsible authority does not make such list or other data available to persons who gain access to, or possession of the summary data. (Emphasis added.)

As stated, summary data are derived from private and/or confidential data on individuals. Pursuant to Section 13.32, data on individuals collected by a public educational agency that relate to students are classified as private (unless those data are directory information, see Section 13.32, subdivision 5). In addition, the Family Educational Rights and Privacy Act (FERPA) limits the disclosure (without consent) of personally identifiable information in education records. The definition of personally identifiable includes a personal identifier, such as the student's social security number or student number, and a list of personal characteristics or other information that would make the student's identity easily traceable. (See 34 C.F.R. Part 99.3.)

Thus, based on state statutes and federal regulations, the answer to Commissioner Wedl's first question depends on whether the release of the MARSS database (minus names and social security numbers) would result in a situation where 1) individuals are not identified and from which neither their identities nor any other characteristics that could uniquely identify an individual is ascertainable (state law); 2) data from which all data elements that could link the data to a specific individual have been removed (state rule); and/or 3) the data do not include a personal identifier, such as the student's social security number or student number, and a list of personal characteristics or other information that would make the student's identity easily traceable (federal rule).

Upon examination of the types of data that comprise the database, there appear to be numerous situations in which the release of the database would be likely to identify a student. Some examples are: 1) if an individual school has only one student of a particular race in a particular grade; 2) if a particular school has only two students (one female and one male) in a particular grade receiving special education services; and 3) if a particular school has only one student in a particular grade who has limited English proficiency. In each of these scenarios, the release of the MARSS database would reveal the identity of the students.

Thus, the only way the Department could deem the MARSS database, minus names and social security numbers, to be summary data, is if, after determining the unique demographics of each school, the Department was reasonably confident that no student could be identified by a dissemination of the database. Based on the information provided to the Commissioner, it is impossible for her to definitely determine whether, in all cases, only summary data would be revealed if the Department disseminated the database without names and social security numbers. However, given the types of data included in the database, it is very likely that, even with student names and social security numbers removed, release of the database could serve as a link to identify specific students.

Mr. Wedl's second question is whether the MARSS database, with names and social security numbers removed, is otherwise public data. As in the discussion of the first issue, the answer depends entirely on whether, with the removal of the names and social security numbers, the remaining data identify students, are data from which a student can be identified, or are a list of personal characteristics or other information that would make the student's identity easily traceable (state and federal law standards). If a student can be identified and the data are classified as private pursuant to Minnesota Statutes Section 13.32, then the data are not public.

A related issue involving the classification of the data in the database relates to social security numbers. As Commissioner Wedl discussed in his opinion request, it is possible that a student's identification number is equal to or is comprised of components of his/her social security number. Pursuant to both Section 13.32 and Section 13.39, social security numbers are classified as private data and are not accessible to the public. Therefore, if a student's social security number was inadvertently released, the Department would be violating the data subject's rights.

The answers to Commissioner Wedl's third and fourth questions are answered by the language of Section 13.05, subdivision 7. In relevant part it states:

[T]he responsible authority shall prepare summary data from private or confidential data on individuals upon the request of any person if the request is in writing and the cost of preparing the summary data is borne by the requesting person. The responsible authority may delegate the power to prepare summary data (1) to the administrative officer responsible for any central repository of summary data; or (2) to a person outside of its agency if the person's purpose is set forth, in writing, and the person agrees not to disclose, and the agency reasonably determines that the access will not compromise private or confidential data on individuals. (Emphasis added.)

Thus, if the Star Tribune makes a written request for summary data from the MARSS database, the Department must either prepare the data itself or delegate the responsibility to a person outside the agency, with a nondisclosure agreement regarding the private data. If the Department prepares the summary data, it may charge the requesting person (see Minnesota Rules Section 1205.0700, subpart 7, for fee guidelines).


Opinion:


Based on the facts and information provided, my opinion on the issues raised by Commissioner Wedl is as follows:
  1. Pursuant to Minnesota Statutes Chapter 13 and the Family Education Rights and Privacy Act (FERPA), it does not appear that the MARSS database, with student names and social security numbers removed, is summary data.
  2. Pursuant to Minnesota Statutes Chapter 13 and the Family Education Rights and Privacy Act (FERPA), removal of names and social security numbers from the MARSS database will not, in all instances, make the resulting data public.
  3. Pursuant to Minnesota Statutes Section 13.05, subdivision 7, if the Star Tribune makes a written request for a summary data version of the MARSS database, the Department must either prepare the data itself or delegate the preparation of the data to a person outside the agency, subject to an appropriate nondisclosure agreement regarding the private data.
  4. Pursuant to Minnesota Statutes Section 13.05, subdivision 7, and Minnesota Rules Section 1205.0700, subpart 7, the Department, in preparing a summary version of the MARSS database may charge the Star Tribune and may request pre-payment.

Signed:

Elaine S. Hansen
Commissioner

Dated: July 3, 1997


Educational data

Summary data

Combining data elements may uniquely identify an individual

Combining data elements may uniquely identify an individual

MARSS (MN Automated Reporting Student System)

Summary data

Costs

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