Note: See Advisory Opinion 19-004 for an updated analysis of the issues presented in this opinion.

Facts and Procedural History:

The Data Practices Office (DPO) received an advisory opinion request from Michael Waldspurger and Kristin Nierengarten, attorneys for Independent School District 564, Thief River Falls (the District). In their letter, they asked the Commissioner to issue an advisory opinion regarding access to certain data that the District maintains.

A summary of the facts is as follows. The District conducted an investigation into a complaint made by a parent (Parent). As part of that investigation, the District interviewed Parent’s student (Student) and audio-recorded the interview. During the two hour interview, Student discussed Student’s conduct, opinions, and observations. Student described locations and circumstances of incidents and activities. Student also identified and discussed other students. Parent subsequently asked the District for a copy of the audiotape.

The District wrote:

The data on [Student] and the data on other students are highly sensitive and are unquestionably classified as private data on individuals… Based on these facts, the District believes the recording contains private educational data on [Student] and private educational data on other identifiable students of the District.

Issues:

Discussion:

The Data Practices Act classifies government data as public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)

Data about students and their parents are governed by both Minnesota and federal law. Minnesota Statutes, section 13.32, classifies data relating to students and parents, and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99.

The Commissioner has previously opined, “[e]ducational data ultimately are controlled by FERPA; 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.” (See Advisory Opinion 09-021.) The purpose of FERPA, “is to set out requirements for the protection of privacy of parents and students.” (See 34 CFR 99.2.)

Subject to limited exceptions, data about students and their parents are private, and may not be released without consent or statutory authority. However, both FERPA and the Data Practices Act allow for disclosure of education records when an entity has de-identified the records. When releasing de-identified data, educational agencies or institutions must be sure, “that a student's identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.” (See 34 CFR 99.31(b)(7).) “Personally identifiable information” includes (but is not limited to) a student’s or parent’s name, address, date or place of birth, and:

Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty. (See 34 CFR 99.2.)

FERPA further provides, “[i]f the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student.” (See 34 CFR 99.12(a). See also 20 U.S.C. sec. 1232g(a)(1)(A).)

The audio recording at issue here constitutes private educational data under Minnesota law and private education records under FERPA, on multiple students.

In arguing that it could not provide a copy of the tape to Parent, the District wrote:

On the audio recording, the data on [Student] are inextricably intertwined with the data on other students. The District cannot separate the data on Complainant from the private educational data on other students for two reasons. First, the data are in the form of an audio recording. Second, on the audio recording [Student] quickly and frequently transitions between discussing [Student’s] conduct, [Student’s] participation in conduct with other students, the conduct of other students towards [Student] and the other students toward additional students.

Because data on [Student] are interwoven with private educational data on other students, the [Data Practices Act] and FERPA prohibit the District from disclosing the audio recording to Parent. See Northwest Publications, Inc. v. City of Bloomington, 499 N.W.2d 509, 511 (Minn. App. 1993). [(Northwest Publications)]

The Commissioner is somewhat puzzled by the District’s first reason. It is certainly possible to redact audio and other government entities routinely do so. However, the District did not provide information on whether it is unable to redact due to practical concerns (i.e., it does not have the capability) or whether the inability to do so relates more to its second reason: the substantive nature of the data.

The District’s second reason for withholding the recording is based on Northwest Publications, in which the Court of Appeals held:

Employing the federal standard we hold that an entire document may be withheld only when the public and nonpublic information is so inextricably intertwined that segregating the material would impose a significant financial burden and leave the remaining parts of the document with little informational value. [Emphasis added.] Northwest Publications at 509.

The holding in Northwest Publications applies to documents in which “public and nonpublic” data are inextricably intertwined. In situations where both of the conditions hold (redaction is too costly and would result in little informational value), an entity may take the drastic measure of withholding an entire document. The public would be denied access to public data, but the data subject would retain the right to access the not public data. This is not the case, here. Further, the policy behind both state and federal law mandates parents’ right to access data about their minor children (subject to very limited exceptions).

Here, the data are a mix of private data on multiple students. If the Commissioner were to accept the District’s argument that Northwest Publications extends to these circumstances, the District would effectively re-classify private educational data as confidential. (See, Minnesota Statutes, section 13.02, subdivision 3). Thus, the practical result of the District’s decision to make a record that it cannot redact would be a record to which only the District had access. However, this is contrary to the express intent of both Minnesota and federal law, which classify these data as private and give data subjects the right of access. (Moreover, the Commissioner is skeptical that, even if Northwest Publications applied to the data at issue here, the District could satisfy both of the threshold requirements. The District did not provide any information regarding the financial burden of redacting an audiotape.)

Neither Northwest Publications nor the Data Practices Act answer the question of how to provide the required access to data subjects when there are competing privacy interests. (The Minnesota Supreme Court opinion in Burks v. Metropolitan Council, 884 N.W. 2d 338, 341 (Minn. 2016), seems to provide guidance on situations when data subjects’ rights come into conflict. However, as the District rightly points out, that case did not arise in the context of education records and did not contemplate the effect of FERPA regulations on the analysis.) However, the federal regulations address the issue of multiple data subjects in education records.

In 2003, the Family Policy Compliance Office (FPCO), the agency within the federal Department of Education tasked with implementing and providing technical assistance on FERPA, wrote:

The law governing the proper handling of a student’s education records that contain personally identifiable information belonging to other students is clear. Indeed, the statute is unambiguous in that it states:

If any material or document in the education record of a student includes information on more than one student, the parents of one such student shall have the right to inspect and review only such part of such material or document as related to such student or to be informed of the specific information contained in such part of such material.

20 U.S.C. sec. 1232g(a)(1)(A). See also 34 CFR § 99.12(a).

Thus, absent the consent of the parents of the other students whose names appear in a student’s education records, an educational agency or institution does not have authority to release such personally identifiable information under FERPA. A school district should redact the names of, or information easily traceable to, any other students mentioned in a student’s education records before providing a parent access to the student’s education records.  In cases where joint records cannot be easily redacted or the information segregated out, the school district may satisfy a request for access by informing the parent about the contents of the record. Letter of technical assistance to school district re: disclosure of education records containing information on multiple complainants (FPCO, Oct. 31, 2003)

The District must provide access to data on Student to Parent. The District must make every reasonable effort to redact the personally identifiable information on other students from the recording and provide access to Student’s data. Only if the District cannot easily separate Student’s education records from those of other students, then it must “inform” Parent of the specific information about Student.

The steps an educational agency or institution might take to satisfy the FERPA standard of “informing” a parent about the specific information in an education record might take different forms depending on the record at issue. Generally, the Data Practices Act does not require entities to create data or to provide it in a different format than the one in which it is maintained. (See Advisory Opinions 00-017, 01-012, and 01-085.) Here, where the interview lasted two hours and likely resulted in a significant amount of information about Student, the District might consider creating a responsive document. In other situations where the circumstances are less involved, an educational agency or institution might fulfill its obligation verbally.

The District asked if it was required to create and redact a transcript of the recording. FERPA gives parents the right to access the “specific information” about their students. While this seems to indicate more than a brief summary (e.g., the one provided to the Commissioner for this opinion), it does not necessarily compel an educational agency to create a transcript in every circumstance. Ultimately, the District is in the best position to determine how to inform Parent about the specific information on Student in the recording.

Finally, the Commissioner cautions government entities to pay careful attention to the way in which they create records. The entity must have in place the policies, procedures, and capacities to respond to any data practices requests that might arise subsequent to the creation of records. In other words, if an entity creates an audio recording record, it must ensure it has the capability to redact that recording appropriately, if necessary, in response to a data request.  

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

Independent School District 564 – Thief River Falls – is not required to provide a parent with a copy of an audiotape of an interview with the parent’s minor student if it cannot easily separate the parent’s student’s education record from the records of other students. In lieu of providing a redacted copy of the tape, the District must inform the parents of the specific information in the record.Signed:

Matthew Massman
Commissioner

Dated: December 7, 2017