Facts and Procedural History:

On January 20, 2004, IPAD received a letter from Nancy Plimpton. In her letter, Ms. Plimpton asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from Independent School District 2143, Waterville-Elysian-Morristown. Ms. Plimpton's request required clarification with IPAD staff.

In response to Ms. Plimpton's request, IPAD, on behalf of the Commissioner, wrote to Joel Whitehurst, Superintendent of the District. The purposes of this letter, dated January 22, 2004, were to inform him of Ms. Plimpton's request and to ask him to provide information or support for the District's position. On January 29, 2004, IPAD received a response from Mr. Whitehurst. A summary of the facts of this matter follows.

In a letter dated November 28, 2003, Ms. Plimpton wrote to Mr. Whitehurst and requested the following data, under Minnesota Statutes, Chapter 13: directory information for all of your district's current four- and five-year-old children, third grade children and your district policy on directory information. Ms. Plimpton asked Mr. Whitehurst to provide, in writing, the legal basis if he denied her request.

According to Ms. Plimpton, she called Mr. Whitehurst on December 5, 2003, to see if he had received her letter, and was told by District staff that Mr. Whitehurst was busy working on their bond election. On December 12, 2003 (the day after their election), Mr. Whitehurst called me to say that they did not have a policy. He stated that he would send out a letter to the affected parents 'asking their permission' to release the information to me. I have not heard from Mr. Whitehurst since that day.

In his comments to the Commissioner, Mr. Whitehurst stated that the District has a policy entitled Protection and Privacy of Pupil Records, which states:

The following information contained in education records of a student is public information and therefore can be released to the public: Student's name; address; telephone listing . . . . Parents not wanting the above information released must notify the school district in writing.

Mr. Whitehurst wrote:

Therefore, we are obviously obligated to provide directory information pertaining to our third grade students who's [sic] parents have not notified the district that they do not want their child's directory information released.

However, four and five year olds residing in our district have yet to enter into our school system so we do not consider them to be our students. Therefore, our policy is not applicable to this age group.

Issue:

In her request for an opinion, Ms. Plimpton asked the Commissioner to address the following issue:

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.

One of the exceptions, under section 13.32, subdivision 5, is that any data a district chooses to designate as directory information pursuant to the provisions of FERPA are public. Under the federal regulations, directory information means information contained in an education record of a student. . . . (Emphasis added. See 34 CFR section 99.3.)

Furthermore, pursuant to section 13.32, subdivision 5:

When conducting the directory information designation and notice process required by federal law, an educational agency or institution shall give parents and students notice of the right to refuse to let the agency or institution designate any or all data about the student as directory information. This notice may be given by any means reasonably likely to inform the parents and students of the right. [See also 34 CFR section 99.37.]

Ms. Plimpton said that Mr. Whitehurst told her the District did not have a policy and that he said that he would send out a letter to the affected parents 'asking their permission' to release the information to me. Mr. Whitehurst stated to the Commissioner that the District does maintain directory information, and does have a policy, from which he quoted. Mr. Whitehurst did not address the apparent disparity in his responses regarding whether the District has a policy on designating and releasing directory information.

The District may disclose directory information only if it has fulfilled its obligations regarding proper designation and notification procedures as detailed under section 13.32 and FERPA. If it has complied with the state and federal requirements, the District should provide the requested directory information, and access to the policy, to Ms. Plimpton without delay. If the District has not complied with state and federal requirements, then the District may not disclose any data about students as directory information.

With respect to Ms. Plimpton's request for access to directory information about four- and five-year-olds residing in the District, Mr. Whitehurst said that those children have yet to enter into our school system so we do not consider them to be our students. Therefore, our policy is not applicable to this age group. (Five-year-olds who are in kindergarten are students, and therefore the District would have directory information about them, which it should provide to Ms. Plimpton.)

It is not clear just what kind of data the District maintains on four- and five-year-olds who are not students. The Commissioner is aware that it is a common practice for school districts, in connection with making their enrollment projections, to collect so-called pupil census data, which likely include data on some four- and five-year-old children. Pursuant to section 13.32, subdivision 2 (b), pupil census data are educational data, which, as noted above, are private. In the Commissioner's opinion, pupil census data are not eligible for designation as directory information under FERPA. As noted above, directory information is defined as information contained in an education record of a student. Therefore, if any of the data on four- and five-year-olds the District maintains are pupil census data, then the District properly withheld access to those data. The Commissioner wishes to note that although Ms. Plimpton asked for directory information about four- and five-year-olds, this discussion applies generally to data maintained by the District on children, other than District students, of any age.

The Commissioner is aware that there is some confusion on this issue, and wishes to make the following comments. Directory information is the term used in statute and FERPA to denote public data about students. However, the District may maintain other public data on children. For example, the District may also maintain data on children in connection with programs such as early childhood family education. If the District does not consider children participating in these programs to be students for purposes of section 13.32 and FERPA, and if there are no other federal rules governing data about participants in what may be a federal program, then data about children in these programs are presumptively public, under section 13.03, subdivision 1. Although, strictly speaking, Ms. Plimpton asked for access to directory information, what she was wanting was access to public data about children. Therefore, the Commissioner believes the District should review the data it maintains on four- and five-year-olds to determine whether it maintains any public data responsive to Ms. Plimpton's request.

Ms. Plimpton also asked for access to the District's policy regarding directory information, but was told that the District did not have one. However, Mr. Whitehurst quoted from the District's directory information policy in his comments to the Commissioner. Accordingly, the District should provide Ms. Plimpton with access to the policy as soon as possible.

Finally, the District failed to provide to Ms. Plimpton, in writing, its rationale for denying access to any requested data, which the District was required to do pursuant to section 13.03, subdivision 3 (f).

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Ms. Plimpton is as follows:

Signed:

Brian J. Lamb
Commissioner

Dated: March 10, 2004