April 5, 1994; School District 11 (Anoka-Hennepin)
4/5/1994 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:On March 16, 1994, the Commissioner of Administration received a letter from Ms. Christina L. Clark, a staff attorney for the Minnesota Education Association. In this letter, Ms. Clark described attempts by her to get access to certain data. She explained that she represents the Anoka-Hennepin Education Association in a number of grievances filed by a special education teacher against the Anoka-Hennepin School District, Independent School District No. 11 and, hereinafter, District 11. She stated that her client and District 11 are preparing to arbitrate these grievances.In preparation for that arbitration, Ms. Clark, on January 27, 1994, wrote to Cathryn T. Olson, a representative of District 11, and made two requests for data under the Data Practices Act. In addition to asking for public personnel data about a District 11 employee, Ms. Clark also asked for a sample set of at least thirty individual education plans (IEPs) for students of District 11 prepared by teachers other than the teacher she is representing. In her request, Ms. Clark made it clear that she did not want to receive copies of IEPs that would contain names or other data that could identify an individual student. After a subsequent phone message from Ms. Olson, Ms. Clark, in a letter dated January 31, 1994, amended her data practices request as to the type of data she requested and certain criterion for selection of the data. In a letter dated February 9, 1994, Ms. Gloria Blaine-Olsen, an attorney for District 11, informed Ms. Clark that the data Ms. Clark had requested about student IEPs could not be made available to Ms. Clark. It was Ms. Blaine-Olsen's opinion that providing the IEPs without student names would still violate . . . state and federal data practices laws because the IEPs contain personally identifiable information even with the student names removed. In a letter to Ms. Blaine-Olsen, dated February 14, 1994, Ms. Clark discussed Ms. Blaine-Olsen's response and reiterated that she did not want to receive IEPs that would identify students. Ms. Clark asked Ms. Blaine-Olsen to explain what items of data contained in an IEP would constitute personally identifiable information. In a letter dated February 25, 1994, Ms. Blaine-Olsen responded to Ms. Clark's inquiry. Ms. Blaine-Olsen quoted the Minnesota Statutes Section 13.32 provision that defines educational data in broad terms. She also quoted the federal rule provision, 34 C.F.R. Section 99.31, that restricts the disclosure of personally identifiable data on students. It was Ms. Blaine-Olsen's position that IEPs are specifically developed for each individual student for whom a plan is required. In her view, IEPs are so unique to each student and so full of detail about the student that even with names deleted that IEPs may still constitute individually identifiable data. Disclosure of individually identifiable data in an IEP . . . would constitute a violation of data practices laws and regulations. In conclusion, Ms. Blaine-Olsen stated that District 11 . . . must strictly comply with data practices laws and regulations. Following the detailed discussion outlined above, Ms. Clark then asked the Commissioner of Administration (Commissioner) to issue an opinion concerning four issues. Those issues are reproduced below in the section labeled Issues . In response to Ms. Clark's request, the Public Information Policy Analysis Division (PIPA), on behalf of the Commissioner, wrote to Mr. Douglas Otto, the Superintendent of District 11. The purposes of this letter, dated March 22, 1994, were to inform Mr. Otto of Ms. Clark's request for an opinion, to ask Mr. Otto or the District's attorney to provide any information or support for the District's position and to inform him of the date by which the Commissioner was required to issue this opinion. On March 31, 1994, via facsimile transmission, PIPA received a response from Ms. Anne Krisnik and Ms. Gloria Blaine-Olsen who identified themselves as attorneys for District 11. This letter reiterated District 11's position that IEPs could not be edited in a way that would avoid disclosure of individually identifiable data on specific students. The letter went into significant detail concerning requirements of state and federal law relative to the preparation and content of IEPs. In summary, the letter stated that . . . each IEP is custom designed for the individual student which it covers. The District believes it is impossible to remove personally identifiable information from an IEP since an IEP, by its very nature, is made up completely of information specific to an individual student. Any number of the pieces of information contained in an IEP may be connected to a particular student, thereby allowing a significant amount of private data on that student to be released. Given the nature of IEPs, as discussed above, it is District 11's position that . . IEPs cannot be provided to the MEA without releasing private educational data. Because of the nature of an IEP, the student's data privacy rights cannot be protected merely by redacting names or other minor pieces of data. It is the belief of the District that release of IEPs is prohibited by the Minnesota Government Data Practices Act and the federal Family Educational Rights and Privacy Act of 1974.
Issues:
In her letter requesting an opinion, Ms. Clark asked that the Commissioner answer the following questions:
Discussion:The Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter MGDPA , at Section 13.32 defines educational data as data on individuals maintained by a public educational agency or institution or by a person acting for the agency or institution as educational data. Data on individuals is defined as all government data in which any individual is or can be identified as the subject of that data. (See Minnesota Statutes Section 13.02, subdivision 5.) With the exception of directory information , educational data are classified as private data. (See Minnesota Statutes Section 13.32, subdivision 3.) Directory information is that information designated by a school district, in compliance with federal law, as directory information. Neither Ms. Krisnik nor Ms. Clark has provided any information that would lead to a conclusion that data involving student IEPs have been designated by District 11 as directory information . In addition to the requirements of the MGDPA, federal law restricts the disclosure of education records. (See 20 U.S.C. 1232g and 34 C.F.R. Part 99.) In this particular instance, Ms. Clark is a member of the public when she requests data from District 11. As an attorney representing a grievant, there is nothing in the MGDPA or federal law that gives her or her client any special access to private educational data or education records. However, Ms. Clark asserts, and she has done so consistently since her first request to District 11, that she is not seeking access to private educational data or to individually identifiable education records. She is seeking access to IEPs from which all data that could identify an individual student has been removed. If IEPs can be edited in such a way to remove all personal identifiers, the resulting product is no longer private educational data under the MGDPA or individually identifiable data under federal law. The product of this editing process would be data that does not identify individual subjects. This product would be public data under the MGDPA and not subject to regulation by federal law. (See Minnesota Statutes Section 13.03, subdivision 1 and 34 C.F.R. Part 99.) This particular process of editing out personal identifiers from a set of data has come to be called redaction . In response to Ms. Clark's request to receive redacted copies of IEPs, District 11 takes the position that given the unique nature of IEPs that it is not possible for the District to prepare a redacted version of an IEP. Although it is possible to argue that at least some redacting of these IEPs is theoretically possible, it is ultimately District 11's judgement call as to whether or not these IEPs can be redacted in such a way as to not reveal private data about individual students. The process of doing the redaction is under the control of District 11. However, exercise of this control also can subject District 11 to possible liability under the MGDPA. If the District were to improperly redact an IEP or IEPs in such a way as to reveal data about a student to Ms. Clark, a member of the public, this disclosure could be actionable under the MGDPA by the student or his or her parents. Not surprisingly in a situation like this, District 11 has elected to take a position that exposes the District to the least legal risk and to not agree to release any IEP data to Ms. Clark. However, this situation also presents a dilemma for Ms. Clark and her client. It is Ms. Clark's opinion that access to this IEP data will be most helpful to assisting her client in the successful resolution of the client's grievance against District 11. In this particular situation, the District's position, while it is clearly based on concern for providing privacy protections for student data as required by state and federal law, may also be helpful to the District as an adversary to a grievance brought against it by one of its employees. To address these kinds of dilemmas, the legislature enacted Minnesota Statutes Section 13.03, subdivision 6. Briefly stated, this provision states a policy that if a government entity subject to the MGDPA resists discovery of data maintained by it on the grounds that the data are classified as not public, the party seeking access to the data can bring an action to ask the officer presiding over a dispute to compel the government entity to release the data. Presiding officers include judicial officers, administrative law judges and arbitrators. It is the responsibly of the presiding officer to conduct a balancing test concerning access to and release of the not public data and, if necessary, to issue protective orders to assure proper handling of the data. (See Minnesota Statutes Section 13.03, subdivision 6.) A government entity that releases not public data pursuant to an order issued under Minnesota Statutes Section 13.03, subdivision 6 is immune from civil or criminal liability. (See Minnesota Statutes Section 13.08, subdivision 5.) Federal law governing educational records provides for release of individually identifiable student record information without consent of the parent or student pursuant to court order or subpoena if a school district makes a reasonable effort to notify the parent or eligible student that the district has received an order or subpoena. (See 34 C.F.R. 31.) In summary, recourse to Section 13.03, subdivision 6 of the MGDPA can give Ms. Clark access to complete IEPs so long as she can convince the arbitrator that the needs of her client outweigh the privacy interests of any individuals identified in the IEPs. In addition, if she and her client receive IEP data, Ms. Clark and her client may have to comply with protective order concerning the IEPs issued by the arbitrator. On the other hand, District 11, if it receives a subpoena issued by the arbitrator after the balancing requirements of Section 13.03, subdivision 6 have been met, will be able to release the data to Ms. Clark without concern for liability. Opinion:Based on the correspondence in this matter, my opinions on the issues raised by Ms. Clark are as follows:
Signed:
Debra Rae Anderson
Dated: April 5, 1994
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Educational data
Litigation
Redaction
IEP (Individual Education Plans)
Discovery (13.03, subd. 6; 1205.0100, subpart 5)
Redaction (See also: Multiple data subjects; Separation of data)
