Discussion:

The issue before the Commissioner is whether a school district, after reporting a crime committed by a special education student, can release certain private data about that student to external law enforcement and prosecuting authorities without violating the student's rights.

The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects a parent's privacy interest in his or her child's educational records. Minnesota Statutes, section 13.32, the educational data section of Chapter 13, incorporates many of FERPA's provisions. The Individuals with Disabilities Education Act (IDEA) is a federal law that, among other things, provides additional privacy protections for students who are receiving special education and related services.

Of relevance to this opinion is the provision in IDEA that provides for the Referral to and action by law enforcement and judicial authorities :

(a) Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
(b)(1) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.
(2) An agency reporting a crime under this section may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by [FERPA].

(See 34 C.F.R. section 300.529.) (Authority: 20 U.S.C. section 1415 (k)(9).)

Ms. Kepple notes that FERPA does not:

...specifically permit the transmission of such special education and disciplinary records without either prior written consent of the eligible student or parent or guardian of a student, or a properly issued subpoena and prior notice to the eligible student or the parent or guardian of a student with an opportunity to seek protective action... (See 34 C.F.R. section 99.31, 9(i) and (ii).)

The Commissioner believes, however, that a separate provision in FERPA may allow a school district to disseminate certain educational data without consent if the student is under 18 years of age. 34 C.F.R. section 99.38 states:

(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under section99.31(a)(5)(i)(B).

(b) The officials and authorities to whom the records are disclosed shall certify in writing to the educational agency or institution that the information will not be disclosed to any other party, except as provided under State law, without the prior consent of the parent or student.

The Commissioner contacted the Federal Department of Education regarding the applicability of 34 C.F.R. section 99.38 and received a response from staff of the Family Policy Compliance Office (FPCO). The FPCO is responsible for investigating potential violations of FERPA and providing technical assistance to schools, including providing verbal and written interpretations of FERPA. FPCO staff wrote:

Section 99.38 of the FERPA regulations implements a statutory provision in FERPA that is very narrowly tailored. That is, we have interpreted that provision to mean that [Minnesota] must have established a juvenile justice system for the sharing of information on unadjudicated children at risk. We jointly wrote with the Department of Justice a publication explaining this provision...

The provision is not intended to permit a school to disclose information to a local law enforcement authority or juvenile authority without the consent of the parents or benefit of a subpoena or court order.

In 2002, the Legislature made changes to section 13.32 regarding dissemination of certain educational data by school districts to the juvenile justice system. In amending section 13.32, the Legislature relied on the report FPCO referenced above. The language in section 13.32 relating to access by the juvenile justice system is at subdivision 8:

(a) Upon request, the following education data shall be disclosed under subdivision 3, clause (i), to the juvenile justice system: a student's full name, home address, telephone number, date of birth; a student's school schedule, attendance record, and photographs, if any; and parents' names, home addresses, and telephone numbers.

(b) In addition, the existence of the following data about a student may be disclosed under subdivision 3, clause (i):
(1) use of a controlled substance, alcohol, or tobacco;
(2) assaultive or threatening conduct that could result in dismissal from school under section 121A.45, subdivision 2, clause (b) or (c);
(3) possession or use of weapons or look-alike weapons;
(4) theft; or
(5) vandalism or other damage to property.
Any request for access to data under this paragraph must contain an explanation of why access to the data is necessary to serve the student.

(c) A principal or chief administrative officer of a school who receives a request to disclose information about a student to the juvenile justice system under paragraph (b) shall, to the extent permitted by federal law, notify the student's parent or guardian by certified mail of the request to disclose information before disclosing the information. If the student's parent or guardian notifies the principal or chief administrative officer within ten days of receiving the certified notice that the parent or guardian objects to the disclosure, the principal or chief administrative officer must not disclose the information. The principal or chief administrative officer must inform the requesting member of the juvenile justice system of the objection.

(d) A principal or chief administrative officer is not required to create data under this subdivision. Information provided in response to a data request under paragraph (b) shall indicate only whether the data described in paragraph (b) exist. The principal or chief administrative officer is not authorized under paragraph (b) to disclose the actual data or other information contained in the student's education record. A principal or chief administrative officer is not required to provide data that are protected by court order. A principal or chief administrative officer must respond to a data request within 14 days if no objection is received from the parent or guardian.

(e) Nothing in this subdivision shall limit the disclosure of educational data pursuant to court order.

(f) A school district, its agents, and employees who provide data in good faith under this subdivision are not liable for compensatory or exemplary damages or an award of attorney fees in an action under section 13.08, or other law, or for a penalty under section 13.09.

(g) Section 13.03, subdivision 4, applies to data that are shared under this subdivision with a government entity. If data are shared with a member of the juvenile justice system who is not a government entity, the person receiving the shared data must treat the data consistent with the requirements of this chapter applicable to a government entity.

(h) A member of the juvenile justice system who falsely certifies a request for data under this section is subject to the penalties under section 13.09.

Thus, if the student is under 18 years of age, it appears that the District, after reporting a crime committed by the student, can release, pursuant to the juvenile justice provision, certain private data about that student to external law enforcement and prosecuting authorities. However, in doing so, the District must follow the steps cited above. The Commissioner notes that pursuant to section 13.32, subdivision 8(a) and (b), only limited data can be disclosed.

If, however, the student is 18 years of age or older, the juvenile justice provision does not apply. Therefore, the District must get consent from the student, or a court order or subpoena, to release the data.

Opinion:

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

Signed:

Brian J. Lamb
Commissioner

Dated: August 7, 2003