November 29, 1993; Minnesota Office of Administrative Hearings
11/29/1993 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.
Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation. Facts and Procedural History:On November 4, 1993, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Ms. Sonja Kerr who is the attorney for X, a minor, and her parents. X's parents are involved in a controversy with Independent School District Number 281 that is the subject of a separate opinion being issued with this opinion.Ms. Kerr recited a history of requests made to the School District Number 281 relative to access to data and other issues related to the Minnesota Government Data Practices Act (hereinafter MGDPA ). She also stated that as part of her client's disagreements with District Number 281 that they had sought a due process hearing as provided by Minnesota Statutes section 120.17, subdivision 36. It appears from the information provided by Ms. Kerr, portions of the transcript of a pre-hearing conference before Administrative Law Judge Phyllis Reha, that Ms. Kerr asked Judge Reha to consider certain claims of X's parents related to violations of the MGDPA and the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g. The transcript states that it was Judge Reha's position that she did not have the jurisdiction or discretion to determine data practices issues within a special education hearing process. Although, she stated it was within her authority and discretion to order a school district to produce documents, that state and federal statutes provided the forum for litigating violations of either the MGDPA or FERPA and that kind of litigation was not appropriate in a special education due process hearing. After asking for opinions concerning the activities of School District 281 and the Minnesota Department of Education, Ms. Kerr also asked for an opinion concerning the position taken by Judge Reha as described above. In response to Ms. Kerr's request for an opinion, PIPA, on behalf of the Commissioner of Administration, wrote to Mr. Kevin E. Johnson, the Chief Administrative Law Judge of the Office of Administrative Hearings, hereinafter OAH . The purpose of this letter, dated November 9, 1993, was to inform the OAH of Ms. Kerr's request, to acquaint the OAH with the Commissioner's authority to issue opinions, to ask the OAH or its attorney to provide any information to explain Judge Reha's position and to inform the OAH of the date on which the Commissioner was required to issue this opinion. To date, PIPA has not received any reply from the OAH.
Issue:
In her request for an opinion, Ms. Kerr stated the issue involving the OAH as follows:
Discussion:
Although the OAH appears to have chosen not to provide the Commissioner with any comments on the issue raised by Ms. Kerr, Judge Reha's discussion about this issue in the pre-hearing transcript is quite clear as to the basis for her position. She discusses the remedies provided in the MGDPA and, by implication, the remedies provided by FERPA and concludes those remedies are available in certain forums but they are not available in a special education due process hearing. Other than to raise the issue in the pre-hearing conference and to request a Commissioner's opinion on the issue, Ms. Kerr did not offer any argument or information to support a conclusion that MGDPA and FERPA claims for relief can be made a part of a special education due process hearing.
Review of the remedy provisions of the MGPDA, the complaint process contemplated by FERPA and its rules and the scope and subject matter of the due process hearing described in Minnesota Statutes Section 120.17, subdivision 3b leads to the conclusion that there is nothing in those various provisions that would provide a basis for an Administrative Law Judge to consider either violations of the MGDPA or FERPA in a special education due process hearing. Judge Reha's position on this matter is supported by review of those statutory and regulatory federal and state law provisions. Opinion:
Signed:
Debra Rae Anderson
Dated: November 29, 1993
|
Educational data
Office of administrative hearings OAH
FERPA (Federal Education Rights and Privacy Act)
Office of Administrative Hearings
