Discussion:

Data collected, created, and/or maintained by public educational institutions are classified pursuant to Minnesota Statutes Section 13.32. Pursuant to subdivisions 1 and 2 of Section 13.32, educational data about students and their parents, in most cases (see Section 13.32, subdivision 5), are private data. Thus, when a school district requests data from a parent and/or child, the district is required to administer a Tennessen Warning notice.

In the current situation, H and H's parents signed up for the Buddies program. The registration form included spaces for information such as: name; teacher's name; address; grade; city; home phone number; school; name of parent/guardian; the parent/guardian's day phone number; why the student wishes to participate; and the name of an adult whom the student admires and why that person is admired. The form also listed various activities and the student was asked to indicate which activities s/he would like to do, watch, or try. H's parents (and H) assert that they should have been given a Tennessen Warning notice upon being asked to fill out the registration form.

In his response, Mr. Ratwik argued that a Tennessen Warning notice is not required because no new data are being collected. He wrote:

Pursuant to Section 13.04, when an individual is asked by a government entity to supply private or confidential data about her/himself, the entity is required to provide a Tennessen Warning notice. Does this mean that each time the same data are collected from an individual, the entity must provide a Tennessen notice? On this question, it is the Commissioner's position that if an entity is collecting the same data from time to time, it is appropriate for the entity to administer one Tennessen Warning notice that, for instance, might cover all similar collections of data for a stated time period. Thus, if a Tennessen Warning notice was previously given, a second Tennessen Warning might not be necessary if the data being collected were not new and there were no changes relating to the other elements of the Tennessen Warning notice.

In the current situation, while Mr. Ratwik states that no new data were collected, he has not provided documentation demonstrating that a Tennessen Warning notice was given when the private data were initially collected from H and H's parents. The Commissioner, therefore, is left to conclude that H and H's parents did not receive a Tennessen Warning applicable to the data collected for the purpose of registering H for the Buddies program. Thus, based on the information provided, it appears that H and H's parents should have received a Tennessen Warning upon supplying private data as part of registering for the 1996-1997 Buddies program.

H's parents asserted that when they met with District personnel in June and August of 1996, they should have been given a Tennessen Warning. They argued that they were asked by District staff to provide private data about themselves and their child. Of the June meeting, H's parents wrote that H's father requested the meeting to discuss [District staff's] poor handling of our complaint against [another District staff person]. H's parents wrote:

Further, they stated that at the August meeting many questions were asked of us regarding the slandering of our child, violations of [her/his] data privacy within a school-sponsored program, sharing [H's] special education information with non-educational personnel, how the Buddies program was administered, the rules of the Buddies program being enforced, and lack of constructive communication between school personnel and parents.

Mr. Ratwik asserted that at neither of the meetings, information was requested of H's parents. He stated:

Mr. Ratwik also likened H's parents' meetings with District staff to a 1997 Minnesota Court of Appeals case, Edina Education Association, et al, v. Board of Education of Independent School District 273 (Edina), et al. In that case, the Court held that when the District interviewed a school psychologist, the circumstances of the investigation did not require a Tennessen Warning. The court wrote, [the District] was attempting to gather factual information about an incident within the course and scope of [the psychologist's] employment. As such, the data may have been government data, but it was not data on an employee as an individual....To the degree that the data identified [the psychologist], it was incidental to the factual focus of the inquiry.

There is a factual dispute as to whether H's parents were askedby the District to supply data about themselves or whether they volunteeredinformation without being asked. While notes were taken at both meetings, upon examining those notes, it is impossible for the Commissioner to determine whether H's parents were asked to supply data. However, if H's parents were asked to supply data about themselves and/or H, the Commissioner opines, because the data being collected were data about H and H's parents, that a Tennessen Warning should have been provided at each of the meetings. In the Edinacase cited by Mr. Ratwik, the Court of Appeals concluded that a Tennessen Warning was not required because the individual raising the issue had not been asked to provide data about herself. According to the Court of Appeals, to the degree that the data identified the school psychologist, it was incidental to the factual focus of the inquiry. In contrast, the data discussed at the meetings involving H's parents and District personnel were data about H and H's parents.

The second issue raised by H's parents is whether the consent to release form they were required to sign upon registering for the Buddies program is in compliance with state and federal requirements. The consent form states:

Pursuant to the Family Educational Rights and Privacy Act (FERPA), the written consent must specify the records that may be disclosed, state the purpose of the disclosure, and identify the party or class of parties to whom the disclosure may be made. (See 34 CFR 99.30.) Pursuant to Chapter 13 and Minnesota Rules Chapter 1205, the government entity must not coerce the data subject into signing a release, the consent must be in writing, the data subject must be informed of the consequences of consenting to release the data, and the data subject must have the option of consenting to release only a portion of data presented by the government entity.

In his response, Mr. Ratwik wrote:

Upon review of the consent to release form for the Buddies program, the Commissioner has the following comments. First, the form is not specific in stating exactly which data about the Buddy participants will be released. In signing the form, the parent is, in essence, 1) consenting to release any and all of her/his child's educational records to program administrators, 2) permitting the administrators to confer with the student's teachers and other professional staff, and 3) permitting those administrators to discuss data with high school buddies. The question is whether it is the District's intention to make the student's entire record available. If not, the District needs to state specifically which types of data are to be released. In addition, the parent must have the option of consenting to release only a portion of the data described in the release form.

Second, it is not clear to whom specifically the data will be released. The form states that administrators of the Buddies program will be able to confer with the student's teachers and other professional staff. The form also states that those administrators may then discuss data with one or more of the high school buddies in order to select an appropriate buddy. If the parents do not have a better sense of the specific people or positions within the program who will gain access to the data about their child, the parents have not been truly informed as to what they are consenting to release and to whom. In short, the Commissioner urges the District to be more specific in identifying the parties who will be gaining access to the data.

Finally, the form does not contain a statement indicating the consequences of releasing the data. For example, if the District staff believes they cannot properly operate the Buddies program unless high school buddies have access to certain data, the form could state that failing to consent to the release of the data will make it difficult for staff to find a buddy match so that the program will be a positive experience for both participants.

Opinion:

Signed:

Elaine S. Hansen
Commissioner

Dated: August 1, 1997