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Advisory Opinion 97-032

August 1, 1997; School District 273 (Edina)

8/1/1997 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 1, 1997, PIPA received a letter dated March 24, 1997, from H's parents. In their letter, H's parents requested that the Commissioner issue an advisory opinion regarding their and their child's rights, pursuant to Minnesota Statutes Chapter 13, as subjects of data. After additional conversations with PIPA staff, two issues were agreed upon.

PIPA, on behalf of the Commissioner, wrote to Kenneth Dragseth, Superintendent of School District 273, Edina. The purposes of this letter, dated June 10, 1997, were to inform him of H's parents' request and to ask him to provide information or support for the School District's position. On June 19, 1997, PIPA received a response, dated same, from Paul Ratwik, an attorney representing the District.

A summary of the facts surrounding this matter is as follows. H is a student in the Edina School District. As a student, H has participated in the Buddies program offered by the District. (The Buddies program brings together high school students and younger students in grades 2 - 5.) As a result of H's parents' dissatisfaction surrounding the handling of some issues connected with the Buddies program, H's parents met with district personnel on two separate occasions - June 5, 1996, and August 7, 1996. In addition, as part of applying for participation in the Buddies program, H and H's parents were asked to supply certain information and to sign a consent to release form.



Issues:

In their request for an opinion, H's parents asked the Commissioner to address the following issues:
  1. Has School District #273, Edina, failed to comply with the requirements of Minnesota Statutes Section 13.04, subdivision 2, because it did not provide a Tennessen Warning notice to H and H's parents upon collection of data in the following situations: 1) upon application for H to participate in the 1996-1997 Buddies program; 2) during a June 5, 1996, meeting with District staff; and 3) during an August 7, 1996, meeting with District staff.

  2. Does the Edina Buddies Program - Parent/Guardian Expectations consent to release form utilized by School District #273, Edina, comply with the requirements of Minnesota Statutes Section 13.05, subdivision 4 (d); Minnesota Rules Section 1205.1400; 20 U.S.C. 123g (b)(1) and (b)(2)(A); and 34 CFR 99.30?



Discussion:

Pursuant to Minnesota Statutes Section 13.04, subdivision 2, when an individual is asked by a government entity to supply private or confidential data about her/himself, the entity must inform the individual of the following: (a) the purpose or intended use of the requested data within the collecting entity; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data. This notice requirement is often referred to as a Tennessen Warning.

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:

The form solicits no private data regarding the student or the student's family which was not previously within possession of the School District, including the student's name, the name of his teacher, his address, his grade, his home phone number, the name of his school, the names of his parents, and their day phone number. The balance of the form, in essence, provides information about the Buddies Program and communicates the program's expectations for elementary students who wish to join. No Tennessen Warning was required because no new data was collected.

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:

Instead of discussing only[District staff's] poor handling of [sic] complaint/investigation; questions were asked of [H's father] such as . . . [H's father] being asked to supply information on how data privacy has violated concerning [sic] his [child], why the [family of other Buddies' participants] at a meeting would violate [H's] data privacy rights, why [H's father] thinks [another District staff] violated [H's] data privacy [sic], what [H's father] wants for his [child's] future, questions on [H's education issues] , etc., etc.

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:

The District was not on June 5, 1996 then conducting an investigation. It had, on several previous occasions, informed [H's parents] through [district staff] that School District personnel had been interviewed and that no need for further investigation was then seen.

[H's parents] apparently saw the meeting of June 5, 1996, as an opportunity to restate, in person, the concerns which they had previously expressed in writing. They had the right to do so. The District listened to and subsequently acted upon these concerns. To characterize that meeting as a request for information is, however, an inaccurate statement. No Tennessen Warning was, therefore, required.

The same conclusion must be drawn with regard to the meeting between [H's parents] and [a District staff person] on August 7, 1996. The Superintendent had assigned [the district staff person] responsibility by [sic] for investigating [H's parents'] concerns. The purpose and function of the meeting on August 7, 1996, was to give them an opportunity to express those concerns in whatever detail they wished to provide. That this was the case is absolutely clear from the redacted notes of the meeting which have previously been provided to the [Commissioner] by the parents.


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:

I understand that program administrators need to have access to educational records for my child in order to select an appropriate high school buddy and to determine whether there are special circumstances or needs which program administrators and the high school buddy should be aware of. I give my consent for administrators of the Edina [Buddies] program to confer with my child's teachers and other professional staff and to their review of my child's educational records for this purpose.

I give my consent for administrators for the Edina [Buddies] program to discuss such special circumstances or needs of my child with one or more of the high school buddies in order to select an appropriate buddy for my child and so that the buddy can take any special circumstances or needs into account in carrying out the buddy's expectations.


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:

The form...sets out the expectations of the School District for participation in the Buddies program. It seeks to advise parents and students of the rules governing the program. Additionally, and in large in a response to the concerns raised by [H's parents], it seeks to explicitly advise parents of the data practices implications of the Buddies Program....The School District is...interested in receiving any comments or observations which the [Commissioner] may wish to make with regard to the application of the Government Data Practices Act to the program materials [she] has been asked to review.

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:


Based on the facts and information provided, my opinion on the issues raised by H's parents is as follows:

  1. A. It appears that H and H's parents should have received a Tennessen Warning upon supplying private data as part of applying for the 1996-1997 Buddies program. Therefore, it appears that School District #273, Edina, has not complied with the requirements of Minnesota Statutes Section 13.04, subdivision 2 (Tennessen Warning notice).

    B, C. It is impossible for the Commissioner to determine whether the District complied with Section 13.04, subdivision 2, in regard to the meetings which occurred on June 5, 1996, and August 7, 1996.

  2. For the following reasons it appears that the Edina Buddies Program - Parent/Guardian Expectations consent to release form utilized by School District #273, Edina, does not entirely comply with the requirements of Minnesota Statutes Section 13.05, subdivision 4 (d); Minnesota Rules Section 1205.0400; 20 U.S.C. 123g (b)(1) and (b)(2)(A); and 34 CFR 99.30: 1) it does not state which specific data will be released; 2) it does not state specifically to whom the data will be released; and 3) it does not state the consequences of releasing the data.

Signed:

Elaine S. Hansen
Commissioner

Dated: August 1, 1997



Data subjects

Educational data

Informed consent

Tennessen warning

Tennessen warning

Educational data

Frequency in giving notice

Volunteering data vs. request to supply data

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