Facts and Procedural History:
On September 8, 2004, IPAD received a letter dated September 5, 2004, from John Wachlarowicz. In the letter, Mr. Wachlarowicz asked the Commissioner to issue an advisory opinion regarding a response by Independent School District 832, Mahtomedi, to his June 23, 2004, request for data.
In response to Mr. Wachlarowicz's request, IPAD, on behalf of the Commissioner, wrote to Mark Wolak, Superintendent of the District. The purposes of this letter, dated September 13, 2004, were to inform him of Mr. Wachlarowicz's request and to ask him to provide information or support for the District's position. On September 24, 2004, IPAD received a response, dated same, from Karen Kepple, an attorney representing the District.
On June 23, 2004, Mr. Wachlarowicz made a request to Mr. Wolak, the District's responsible authority, for ... all directory information the District maintains or has maintained on the parents of [a named student] (name, address, phone number, etc.). Kay Korupp, the Data Compliance Official/Designee for the District, responded in a letter dated July 2, 2004, that the data were not available to Mr. Wachlarowicz because of School Board Policy 509 that limited use of directory information on parents to ...matters pertaining to school district business, functions, or purposes.
Issue:
In his request for an opinion, Mr. Wachlarowicz asked the Commissioner to address the following issue:
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| Did Independent School District 832, Mahtomedi, comply with Minnesota Statutes, Chapter 13, when it denied access to certain directory information about a student's parents? |
Discussion:
Provisions of both Minnesota and federal law govern access to data about students. Section 13.32 classifies data relating to students (termed educational data ) and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing Rules, 34 CFR Part 99. Subject to limited exceptions, educational data (termed education records under FERPA) are private and may not be released without consent.
Congress did provide some exceptions so that certain disclosures could be made and those are detailed in the federal regulations that are found at 34 CFR part 99. Minnesota has generally followed these exceptions and the state provisions can be found within section 13.32. The Minnesota Legislature's ability to act in the area of access to and dissemination of school data is limited by the provisions of FERPA and the accompanying regulations.
Directory information is one of the categories of data about students that can be disclosed. In Advisory Opinion 01-078, the Commissioner described the process for designating directory information in the following way:
FERPA provides that the school board must determine what data elements about students are not considered harmful or an invasion of privacy if disclosed. 20 U.S.C. section 11232g (a)(5). The data elements that the U.S. Department of Education has offered as examples to a school board for consideration as directory information include:
student's name, home address, telephone number, email address, photograph, date and place of birth, field of study, dates of attendance, grade level, enrollment status, participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees, honors and awards received and the most recent educational agency or institution attended.
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34 CFR section 99.3 (definition of directory information, as amended and effective August 7, 2000).
The school board is free to choose which of the data elements it wants to designate as directory information, to make its determination of what constitutes directory information once each year, and notify parents of its decision. 34 CFR section 99.7. Parents are also given the option to have the directory information about their children not be public and the school district must have a way to honor such a request. 34 CFR section 99.37. Directory information is public data in Minnesota and must be provided to anyone who asks. Minnesota Statutes, section 13.32, subdivision 5.
The Legislature classified data about the parents of students as private but has provided a mechanism by which school districts can treat data about the parents of students as public. Specifically, according to section 13.32, subdivision 2 (c):
Data concerning parents are private data on individuals but may be treated as directory information if the same procedures that are used by a school district to designate student data as directory information under subdivision 5 are followed.
Section 13.32, subdivision 5, provides that directory information is public data. According to section 13.02, subdivision 15, public data on individuals, such as data about students and their parents, ...is accessible to the public in accordance with the provisions of section 13.03. In addition, Minnesota Rules 1205.0300, subpart 2, states:
The responsible authority shall provide access to public data to any person, without regard to the nature of that person's interest in the data.
Finally, section 13.05, subdivision 12, prohibits a government entity from asking an individual who is requesting access to public data to identify him/herself, state a reason for, or justify a request to gain access to public government data.
In analyzing the situation presented to the Commissioner, it appears that the District has followed the requirements of federal law and established what data elements are directory information. This decision is documented in School Board Policy 509 entitled Protection and Privacy of Pupil Records. In Section I, Paragraph A, directory information is defined in the following way:
District 832 has identified selected Directory Information relating to students. This information is public. The parent or student may, however, request in writing that any or all of the information below not be released on that individual student. The written request must be received within 30 days after the official notice is published.
Directory information includes the following information relating to a student: The student's name, date and place of birth, sex, major field of study, participation in officially organized teams, dates of attendance, grade levels completed, degrees and awards received, the most recent previous educational agency or institution attended by the student, pictures for school-approved publications/newspapers, school or classroom websites, or cablecasts, bulletins, programs, or similar school-produced information pieces. Directory information also includes the name, address and telephone number of the student's parent(s) for use in matters pertaining to school district business, functions, or purposes. Except as specifically provided above, directory information does not include identifying data that references religion, race, color, social position or nationality.
At issue here is whether the District can set limits on use of directory information about the parents of students. The District argues that the restrictions it has imposed meet the requirements of state and federal law and have the effect of protecting student safety.
The Commissioner respectfully disagrees with the District's argument. Having established the name, address and telephone number of the student's parent(s) as directory information, section 13.32, subdivision 5, says that the data are public.
Public data are accessible to anyone for any reason and the District cannot place limitations on the use of the data that are public. See Advisory Opinion 96-036. Therefore, the policy as written does not comply with state law. As the policy is inherently flawed, Mr. Wachlarowicz should have received the directory information he requested June 23, 2004, regarding the parents of a named student.
The District indicated that it wants to limit access to home address and telephone number information about students and their parents. To accomplish this, the District should not include home address and telephone number for either students or parents in the District's definition of directory information.
Opinion:
Based on the facts and information provided, my opinion on the issue raised by Mr. Wachlarowicz is as follows:
| Independent School District 832, Mahtomedi, did not comply with Minnesota Statutes, Chapter 13, when it denied access to certain directory information about a student's parents. |
Signed:
Kent Allin
Acting Commissioner
Dated: October 18, 2004
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