| Will Independent School District 281, Robbinsdale, violate FERPA if it releases all documentation, including an investigative report, which contains private education records/educational data regarding the student victim as well as witnesses, to the Minnesota Department of Children, Families Learning, which is conducting an investigation of a maltreatment of minors report under Minnesota Statutes section 626.556? |
Discussion:
In his comments, Mr. Lombard asserted that the data in question are more correctly classified as personnel data on the alleged perpetrator under section 13.43. He stated: [e]ven if students' names are on the investigative report, it is not a document that 'contains information directly related to a student.' The student victim or the student-witnesses are not the subject of the investigative report, the alleged perpetrator is. Data about students are generally classified as private under both state and federal laws.
Without examining the data in question, the Commissioner cannot determine whether there is only one data subject, i.e., the alleged perpetrator, or whether some of the data are about District students. Given the nature of the allegation, it seems reasonable that the data are about multiple subjects. To the extent that the data are not data about students, then there is no conflict with federal law. Pursuant to a 2001 amendment to section 13.43, codified at subdivision 14:
When a report of alleged maltreatment of a student in a school facility, as defined in section 626.556, subdivision 2, paragraph (f), is made to the commissioner of children, families, and learning under section 626.556, data that are relevant to a report of maltreatment and are collected by the school facility about the person alleged to have committed maltreatment must be provided to the commissioner of children, families, and learning upon request for purposes of an assessment or investigation of the maltreatment report.
Accordingly, the District, if it has not already done so, must provide data about the alleged perpetrator to CFL immediately.
The remainder of this discussion is limited to the issues regarding release of student data. Data about students are generally classified as private under Minnesota Statutes, section 13.32, and FERPA (20 U.S.C. section1232g.) In the 2001 legislative session, section 13.32 was amended to require, upon request of the Commissioner of CFL, the dissemination of educational data to CFL for purposes of an assessment or investigation of a report of alleged maltreatment of a student as mandated by section 626.556. Under section 13.32, subdivision 3 (n), the data that must be disclosed to CFL include:
(1) information regarding the student alleged to have been maltreated;
(2) information regarding student and employee witnesses;
(3) information regarding the alleged perpetrator; and
(4) what corrective or protective action was taken, if any, by the school facility in response to a report of maltreatment by an employee or agent of the school or school district.
FERPA does not provide a specific exception to the general rule prohibiting disclosure of private data about a student for the purposes of an assessment or investigation of a report of alleged maltreatment. CFL relies for its position, inter alia, on two opinion letters rendered by two federal offices: the Family Policy Compliance Office (Letter to Ferguson), and the Office of Special Education and Rehabilitative Services (Letter to Schaffer), both part of the United States Department of Education. (The Family Policy Compliance Office (FPCO) is responsible for investigating potential violations of FERPA, and providing technical assistance to schools, including providing oral and written interpretations of FERPA. The Office of Special Education and Rehabilitative Services (OSERS) develops and implements policy and legislation that directly affect disabled individuals and their families, and monitors related laws and regulations.)
Mr. Knutson and Ms. Kenney state that those two letters address whether schools may disseminate education records only in connection with initial reports of suspected child abuse, not any later investigations. CFL takes the position that the letters address what kind of information and how much information can be disclosed pursuant to a child abuse or maltreatment investigation and not just initial mandated reports.
The Commissioner believes it is reasonable, when asked to reconcile federal and state laws, to examine any relevant rulings from federal agencies. Upon examination, the Commissioner finds the Ferguson and Schaffer letters helpful. The Ferguson letter, in the first paragraph, states:
This is in response to your inquiry . . . in which you ask if [FERPA] would preclude school districts in Texas from disclosing information from education records in connection with investigations of alleged child abuse or neglect. (Emphasis added.)
In the second paragraph, the letter states:
You state that your law firm represents the San Antonio Independent School District (District) and that the District is concerned about disclosing education records to case workers from the Texas Department of Human Services (DHS) who come to schools to investigate child abuse allegations. (Emphasis added.)
The letter discusses Texas Code section 552.114, which provides that student records are exempt from public disclosure except that such a record shall be made available on the request of . . . a person conducting a child abuse investigation required by Subchapter D, Chapter 261, Family Code. It then states:
While FERPA does provide that an educational agency or institution may disclose education records without prior written consent under certain limited exceptions, none of these exceptions . . . applies to the disclosures required under this State law provision. Nevertheless, we believe that Texas' mandatory reporting requirements found in section261.101 (a) of the Family Code that require release of information from a student's education records do not violate FERPA. Based on our review of Federal law, we have concluded that the conflict here is between two Federal laws rather than the Texas statute and FERPA. Further, we believe that when a conflict exists between two Federal laws, the later enacted Federal law must prevail.
Thus, at the outset, Ferguson appears to address the question of dissemination of data in connection with an investigation of alleged child abuse, but limits its conclusion to data disseminations in connection with mandatory reports. As to its applicability here, the Commissioner agrees with Mr. Knutson and Ms. Kenney, that Ferguson does not indicate that there is authority under FERPA for the District to provide CFL with the data requested.
The Schaffer letter states:
While FERPA does not specifically permit schools to disclose information from a student's education record to a child welfare agency if a student is a suspected victim of child abuse, we have advised schools that they may do so under [CAPTA.] Our review of CAPTA indicates that it is a later enacted, more specific Federal statute that conflicts with FERPA regarding the disclosure of information, and that Congress intended to override the privacy protections of FERPA when it enacted CAPTA. As a later enacted and more specific statute, we believe that CAPTA reflected congressional intent that information specified in the statute be reported to child welfare agencies, notwithstanding FERPA's privacy provisions. [Emphasis added.]
By this letter, OSERS is indicating that disseminations by school districts to child maltreatment investigators are contemplated by CAPTA.
The Commissioner has been presented here with a dilemma that is not easily resolved. The Commissioner believes, as CFL has asserted, that it would make no sense for the law to allow schools to report the fact that an incident of alleged abuse occurred but then not allow the schools to disclose other pertinent information about the incident, to enable the authorities to conduct an investigation about the incident in the school. Nonetheless, that appears to be the conclusion that a strict interpretation of the law dictates.
In situations such as these, the courts look to Congressional findings for assistance. Those findings in CAPTA, provide that:
- Congress desires a thorough, coordinated and comprehensive investigation of child maltreatment allegations;
- Congress takes note that there is a burden on investigation due to strict laws regarding confidentiality, and while the privacy of child abuse records is important, these laws can end up protecting the perpetrators;
- Therefore comprehensive and coordinated interagency communication needs to be established with adequate provisions to protect against public disclosure.
In addition, CAPTA was enacted with knowledge of FERPA and of the fact that schools would need to disseminate data to investigators of alleged child maltreatment. Given the goals of CAPTA, Congress must have intended for greater disclosure than the mandated initial report. This conclusion is further supported by the analysis in the Ferguson letter that found that the potential conflict is between two federal laws. The conclusion reached by the FPCO in Ferguson that, based on Watt v. Alaska, 451 U.S. 259, (1981), the two statutes must be read to give effect to each if that can be done while preserving both statutes' sense of purpose. (See Watt v. Alaska, 451 U.S. at 268.) When faced with a conflict between the purposes of FERPA and CAPTA, the FPCO stated its belief that Congress intended for the requirements of CAPTA to be followed rather than the protections against disclosure of student records found in FERPA. (See Ferguson letter at page 7.)
The Commissioner also acknowledges the following comments made by Mr. Lombard:
It is notable that public school districts, such as Robbinsdale, have not interpreted FERPA to prevent them from providing to county social service agencies the same data now being requested by CFL as mandated by the 1999 and 2000 changes to Minn. Stat. section 626.556 and Chapter 13. It is common practice throughout the state of Minnesota for schools to work with county social services to comply with section 626.556 when the reported abuse occurs outside the school. The information provided by schools in such cases often includes information, such as that gathered in student interviews, social workers' reports, school nurse reports, interviews of other students the abused child may have reported to (i.e., witnesses) and other school records. If schools were to apply the same interpretation of section 626.556 and FERPA as that asserted in [this] Opinion Request, it would mean that schools would no longer cooperate with county social service agencies in fully reporting the information needed to assess and investigate reported familial abuse.
As noted by CFL, historically schools have cooperated with welfare investigators, including by providing educational data/education records. Furthermore, section 626.556, subdivision 10, authorizes child abuse investigators to conduct interviews on school property, and section 626.556, subdivision 4(a)(3), immunizes school officials from liability if they act in good faith. It appears that the only thing that has changed here is that it is CFL, not a county social service agency, that is doing the investigation. There is no reasonable basis for an argument that the dissemination of the same data historically provided to a county social service agency is not authorized to CFL.
Given all of the above, the Commissioner concludes that the District must disseminate to CFL the data in question, i.e., data that are relevant to a report of maltreatment, as specified in sections 13.32, subdivision 3 (n), and 626.556.
The Commissioner notes that FERPA requires that if an educational agency or institution cannot comply with FERPA due to a conflict with State or local law, it must notify the Family Policy Compliance Office within 45 days. If the District has not notified the FPCO of this apparent conflict between FERPA and Minnesota statutes, it should do so immediately. Furthermore, because this is an issue of huge import not only to Minnesota but nationally, the Commissioner believes that the District should request an opinion from the FPCO.
The Commissioner also notes that both the District and CFL discussed why other FERPA exceptions allowing disclosure without consent either do or do not apply here. The Commissioner did not find those discussions helpful to the resolution of the main issue, and as such, has determined not to address those arguments.
Opinion:
Based on the facts and information provided, my opinion on the issue raised by Mr. Knutson and Ms. Kenney is as follows:
| Independent School District 281, Robbinsdale, will not violate FERPA if it releases, without parental consent, all documentation, including an investigative report, which contains private education records/educational data regarding the student victim as well as witnesses, to the Minnesota Department of Children, Families Learning, which is conducting an investigation of a maltreatment of minors report under Minnesota Statutes section 626.556. |
Signed:
David F. Fisher
Commissioner
Dated: January 7, 2002
