Issues:

Discussion:

Issue 1

Pursuant to Minnesota Statutes, Chapter 13, does the letter dated January 21, 2002, contain either private personnel data on any employee of Independent School District 2149, Minnewaska, or private educational data on any District student or parent?

Data about public employees are classified pursuant to Minnesota Statutes, section 13.43. Subdivision 2 of section 13.43 enumerates the personnel data that are public and subdivision 4 classifies most other personnel data as private.

Provisions of both state and federal law govern access to data generated by school districts about students. Section 13.32, incorporates by reference much of Title 20 of the United States Code, Section 1232g, the federal Family Educational Rights and Privacy Act (FERPA), and its implementing Rules, Title 34 of the Code of Federal Regulations, Part 99. Subject to limited exceptions, educational data (termed education records under FERPA) are private.

Upon review of the letter in question, the Commissioner agrees with Mr. Rupp and Mr. Waldspurger, that it contains both private personnel data on District employees, and private educational data on X, Y, Z and A.

The private personnel data are in the nature of complaints against two specific District employees (a principal and a special education teacher), that apparently have not resulted in final disciplinary action. (See section 13.43, subdivisions 2 (a) (5) and 2 (b).)

The letter also contains references to Starbuck and Minnewaska teachers in which an individual teacher is not identified. Mr. Rupp and Mr. Waldspurger stated their belief that A presumably knows the names of her/his children's teachers, and that it is not a far leap to suggest that [A] could readily identify the unnamed teachers who are the subject of [X's] complaints. However, it is not clear to the Commissioner from the context of the letter that the references to unnamed teachers are in fact, references to Y or Z's teachers. Therefore, it may be that those references are public, if those statements don't provide sufficient data in which an individual is or may be identified. (See section 13.02, subdivision 5.) However, the District, knowing the whole context, is in the best position to make that judgement.

The educational data about X, Y, Z and A are in the nature of X's characterizations of statements made by District teachers about X, Y, Z and A, as well as X's own views of same.

Issue 2

Pursuant to Minnesota Statutes, Chapter 13, may the District provide a copy of the January 21, 2002, letter?

Under both state and federal law, parents are generally entitled to gain access to the education records of their minor children. (See FERPA, section 1232g(a)(1)(A), Minnesota Statutes section 13.02, subdivision 8, and Minnesota Rules Part 1205.0500, subpart 4, for more information and some exceptions.) Mr. Rupp and Mr. Waldspurger did not assert that A is precluded from gaining access to data about the minor child, Y.

This issue concerns the specific data in the letter to which A's attorney is entitled access. As noted above, the letter contains a mixture of private personnel and educational data, pursuant to section 13.43 and 13.32. The letter also contains limited public data not classified under either of those sections (i.e., the following statement: [t]he Starbuck Elementary School asks parents to save sales slips from the local grocery store for financial redemption. )

Absent any evidence to the contrary, A has the right to gain access to the private data about him/herself and Y, the minor child, and the public data contained in the report. However, absent a proper consent to release the private data to A's attorney, the District may not do so.

Furthermore, the private personnel data, and data about X, cannot be released to the public, including A and A's attorney.

The question of A's right to gain access to private educational data about Z, who is over eighteen, remains. At the age of eighteen, all rights under section 13.32 and FERPA transfer from parent to child, including the right to give one's consent to release educational data to a third party. In Advisory Opinion 96-009, the Commissioner opined:

Section 1232g (d) of FERPA states: whenever a student has attained eighteen years of age, or is attending an institution of postsecondary education the permission or consent required of and the rights accorded to the parents of the student shall thereafter only be required of and accorded to the student. Section 99.3 of the federal rules defines students who fall under this provision as eligible students.

In general then, as private data, educational data may not be disclosed except to parents and eligible students. Minnesota Statutes Section 13.32, subdivision 3, provides certain exceptions to that general rule. One of those exceptions, contained in subdivision 3(e), incorporates a provision of the federal law that is central to this opinion.

Section 13.32, subdivision 3(e) provides for the disclosure of educational data: [p]ursuant to the provisions of United States Code, title 20, sections 1232g(b)(1), (b)(4)(A), (b)(4)(B), (b)(1)(B), (b)(3) and Code of Federal Regulations, title 34, sections 99.31, 99.32, 99.33, 99.34, and 99.35 which are in effect on July 1, 1993.

Section 1232g(b)(1) provides that, with the exception of directory information, education records may not be disclosed without the written consent of the parent(s) or eligible student, except as otherwise provided in that Section.

One of the other exceptions, found in Section 1232g(b)(1)(H), states that consent is not required for the disclosure of education records to parents of a dependent student of such parents, as defined in section 152 of Title 26 (the Internal Revenue Service Code.) (Emphasis added.) (See also 34 C.F.R. section 99.31(a)(8).)

The Commissioner was not provided information to determine whether Z qualifies as a dependent student under the IRS definition. If Z is a dependent student, then pursuant to U.S.C. Section 1232g(b)(1)(H), A is entitled to gain access to the data in the letter about Z, without Z's consent.

However, among the rights that pass at the age of eighteen from parent to child under section 13.32 and FERPA is the right to give one's consent to the release of educational data to a third party. Notwithstanding the parents' rights to gain access to the educational data of an adult child who is a dependent student, as discussed above, the child retains the right to consent to release data to a third party. Accordingly, A cannot give his/her attorney A's consent regarding data about Z. The District may not release to A's attorney data about Z without Z's informed consent.

Opinion:

Based on the facts and information provided, my opinion on the issues raised by Mr. Rupp and Mr. Waldspurger is as follows:

Signed:

David F. Fisher
Commissioner

Dated: May 6, 2002