Discussion:

When an individual requests access to government data of which s/he is the subject, the government entity must respond within ten working days. (See Minnesota Statutes, section 13.04, subdivision 3.) Pursuant to section 13.02, subdivision 8, a parent may gain access to private data about his/her child.

Section 13.04, subdivision 3, also contains a provision that puts a limit on a data subject's access to data: After an individual has been shown the private data...the data need not be disclosed to that individual for six months thereafter unless a dispute or action pursuant to this section is pending or additional data on the individual has been collected or created. However, it is the Commissioner's opinion that this provision does not apply to educational data. Access to educational data is governed by both Chapter 13 and the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing Rules, 34 C.F.R. Part 99. FERPA does not contain any provision permitting educational institutions to withhold data in situations similar to those regulated by section 13.04, subdivision 3. Federal law preempts state law, which, in this case, means that state law cannot place further restrictions on a data subject's rights to gain access to educational data.

In her comments to the Commissioner, Ms. Kepple wrote:

The fact of the matter is [X] had been provided already with copies of [X's child's] special education records, recently enough that the record had not changed.

...It is reasonable to assume that either [X] had no intention of reviewing the data requested on June 1, 2004 or that [X] did not review the same data previously requested and already provided. Presumably, [X] did not intend to review the same 1,000 pages twice. It is much more likely that [X's] latest request is an attempt to inflict upon the district the cost and burden of compiling and making 1,000 copies again.

Pursuant to state and federal law, the District was required to provide X copies of the data s/he requested in the June 1, 2004, letter. Further, pursuant to section 13.04, subdivision 3, the District was required to provide the data to X within ten working days. The District did not do so.

The following note is in order. A government entity is within its right to establish a policy that requires data requestors to pay all or part of any copy costs before providing copies. If the District is concerned that individuals will not pay copy fees, it is reasonable for the District to establish a policy requiring advance payment. In this case, because the data X requested are educational records that relate to a child with a disability, the District must consider the following provisions of state and federal law: (1) An agency or institution that receives a request for copies of the educational records of a child with a disability may charge a fee that reflects the costs of reproducing the records except when to do so would impair the ability of the child's parent...to exercise their right to inspect and review those records (section 13.04, subdivision 5); (2) Each participating agency may charge a fee for copies of records that are made for parents under this part if the fee does not effectively prevent the parents from exercising their right to inspect and review those records (34 C.F.R. section 300.566, of the federal regulations promulgated under the Individuals with Disabilities Education Act); and (3) Unless the imposition of a fee effectively prevents a parent or eligible student from exercising the right to inspect and review the student's education records, an educational agency or institution may charge a fee for a copy of an education record which is made for the parent or eligible student (34 C.F.R. section 99.11).

Opinion:

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

Signed:

Kent Allin
Acting Commissioner

Dated: October 21, 2004