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November 3, 2000; School District 31 (Bemidji)
11/3/2000 10:16:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access. On September 13, 2000, IPA received a letter from Rebecca Hamblin, attorney for Education Minnesota, on behalf of Y, a District employee. In this letter, Ms. Hamblin asked the Commissioner to issue an advisory opinion regarding Y and X's rights with respect to certain data maintained by School District 31, Bemidji. In response to Ms. Hamblin's request, IPA, on behalf of the Commissioner, wrote to Rollie Morud, Superintendent of the District. The purposes of this letter, dated September 15, 2000, were to inform him of Ms. Hamblin's request and to ask him to provide information or support for the District's position. On October 3, 2000, IPA received a response from Ann R. Goering, attorney for the District. A summary of the facts of this matter follows. During an arbitration hearing in June of 2000, Ms. Goering questioned Y about the home-schooling of Y's child, X, a student in the District. According to Ms. Hamblin: It is Education Minnesota's position that the information regarding the home-schooling of [X] is educational data' as defined by Minn. Stat. section13.32. As private educational data, this information should be available to very few school district officials if any. It can only be released to officers or employees of the District if they have a legitimate educational interest, such as having work assignments that reasonably require access. The District had no legal basis for informing Ms. Goering, as the District's counsel in a case that involved [Y] as an employee, that [X] was being home-schooled by [Y] in [Y's] capacity as a parent, not as a teacher. Furthermore, the private data regarding [X] is not personnel data' as defined under Minn. Stat. section13.43. Personnel data is collected because the individual is or was an employee. [Y's] home schooling of [X] is not within the scope of [Y's] employment with the school district. Therefore, it is not personnel data. In her response to the Commissioner, Ms. Goering wrote: A School District employee had a conversation with [Y] related to home schooling. The employee did not record the substance of the conversation in any manner other than in his memory. The unrecorded mental impressions of public employees are not classified as government data. Keezer v. Spickard, 493 N.W.2d 614 (Minn. App. 1992), rev. denied. Because the information provided to counsel for the District was not recorded, a violation of the MGDPA cannot be found to have occurred. Moreover, the employee recalled the information not because the student was enrolled in the District, but because [Y] was a licensed teacher employed by the District. The student's name was not referenced. To constitute private educational data on a student it must be recorded because the student is or was enrolled in the District. In this case, the employee recalled [Y's] statements because a teacher employed by the District made them. Issue:In her request for an opinion, Ms. Hamblin asked the Commissioner to address the following issue:
Discussion:Data about students are termed educational data and are classified at Minnesota Statutes, section 13.32. Generally speaking, educational data are private. (See section 13.32, subdivision 2.) Student is defined at section 13.32, subdivision 1 (c), as an individual currently or formerly enrolled or registered, applicants for enrollment or registration at a public educational agency or institution, or individuals who receive shared time educational services from a public agency or institution. Both state and federal law set forth standards regarding access to private data by employees of a school district. According to Minnesota Rules, part 1205.0400, private data may be disseminated to those persons within the government entity, e.g., the District, whose work assignments reasonably require access to the private data. Pursuant to 34 CFR 99.31(a)(1), of the rules implementing the federal Family Educational Rights and Privacy Act (FERPA), education records may be disclosed to other school officials, including teachers, within the institution whom the institution has determined to have a legitimate educational interest in the record. However, according to Ms. Goering, the source of the information about the home schooling of Y's child was Y, via the other employee, and not any recorded data maintained by the District. The Minnesota Court of Appeals held in 1993 that data must be recorded in physical form in order to be considered government data for purposes of Chapter 13. (See Keezer v. Spickard, 493 N.W. 2d 614 (Minn. Ct. App. 1992), review denied February 12, 1993.) In Keezer, the Court wrote: The [Minnesota Government Data Practices Act] is intended to regulate every aspect of how the government manages the information it collects and records. It is nearly impossible to regulate any function related to data until a record is created somewhere outside the human brain. To give effect to the Act, we conclude that information is not government data' until the information is recorded somewhere other than the human brain. Ms. Hamblin did not provide any documentation that the source of the data disclosed by Ms. Goering in the hearing was government data, as defined per Keezer, that are maintained by the District. Therefore, the Commissioner accepts the District's assertion that it did not improperly disseminate private educational data about X. Furthermore, even absent Keezer, given the definition of student cited above, it is hard to see how a home-schooled child is a student for purposes of section 13.32, if s/he was never enrolled in the District. In that case, there would be no educational data, which are defined at section 13.32, subdivision 1 (a), as data on individuals maintained by a public educational agency or institution or by a person acting for the agency or institution which relates to a student. Opinion:Based on the facts and information provided, my opinion on the issue that Ms. Hamblin raised is as follows:
Signed:
David F. Fisher
Dated: November 3, 2000 |
Educational data
Home schooling
Student, defined
Mental impressions (See: Keezer v. Spickard, 493 N.W.2d 614)
