Facts and Procedural History:

On behalf of a number of school districts represented by Kennedy and Graven, Adam Wattenbarger asked for an advisory opinion regarding data that the districts maintain pursuant to Minnesota Statutes, Chapter 13, the Minnesota Government Data Practices Act (Data Practices Act). 

Mr. Wattenbarger provided a summary of the facts. 

School Districts often receive subpoenas duces tecum compelling the disclosure of student records as part of a legal proceeding. For example, the attorney of a parent in a custody dispute may subpoena education records to be used in family court. The issue that arises is whether, under Minn. Stat. [section] 13.32, school districts may disclose private educational data in response to a lawfully issued subpoena. 

Issue:

Discussion:

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 the authority to share student data as allowed by the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99. (See section 13.32, subdivision 3(e).)

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.)

 Section 13.32, subdivision 3, provides:

Except as provided in subdivision 5, educational data is private data on individuals and shall not be disclosed except as follows:

…

(e) pursuant to the provisions of United States Code, title 20, sections 1232g(b)(1), (b)(4)(A), (b)(4)(B), (b)(1)(B), (b)(3), (b)(6), (b)(7), and (i), and Code of Federal Regulations, title 34, sections 99.31, 99.32, 99.33, 99.34, 99.35, and 99.39;

FERPA regulations provide:

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by [section] 99.30 if the disclosure meets one or more of the following conditions:

...

(9)

(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.

(ii) The educational agency or institution may disclose information under paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action.

Additionally, the U.S. Department of Education Family Policy Compliance Office (FPCO), in a 1996 letter to counsel for school districts in California, wrote:

While a lawfully issued subpoena or court order may compel disclosure of information, FERPA does not require an educational institution to disclose information from a student's education record to anyone other than to the parent of a student to whom the records relate or to the eligible student to whom the records relate. Rather, FERPA permits disclosure of education records without prior written consent in certain limited situations, such as when the records are the subject of a subpoena or court order.

The attorney for the school districts here, wrote:

Under federal law, it is clear that [disclosure pursuant to a subpoena] is permitted. The Federal Educational Rights and Privacy Act (“FERPA”) provides that a school may disclose education records pursuant to a judicial a judicial order or “any lawfully issued subpoena,” provided that the school makes a reasonable effort to notify the parent or eligible student in advance of compliance, so that the parent or eligible student may seek protective action. 20 U.S.C. [section] 1232g(b)(2)(B); 34 C.F.R. [section] 99.31(a)(9)(i). 

By contrast, under the Data Practices Act, educational data may be disclosed “pursuant to a valid court order.” Minn. Stat. [section] 13.32, subd. 3(b). The statute does not list a subpoena as a valid exception for disclosing educational data. However, the statute does allow disclosure pursuant to a number of FERPA provisions and regulations, including all of 34 C.F.R. [section] 99.31. See Minn. Stat. [section] 13.32, subd. 3(d). Notably, section 99.31, as cited above, is the FERPA regulation that contains the exception which allows for disclosure of education record pursuant to a lawfully issued subpoena (albeit subject to reasonable advance notice).

Therefore, based on the plain language of the statute, it appears that the Data Practices Act incorporates the FERPA provisions that allow disclosure pursuant to a subpoena. Because Minn. Stat. [section] 13.32 says that educational data may be disclosed pursuant to the provisions of 34 C.F.R. [section] 99.31, and section 99.31 say that data may be disclosed pursuant to a lawfully issued subpoena, it follows that under Minn. Stat. [section] 13.32, educational data may be disclosed pursuant to a lawfully issued subpoena (after following the FERPA notice requirements). (Emphasis provided.)

The Commissioner agrees with the school district’s counsel. Even though a subpoena is not specifically mentioned, state law expressly allows for sharing pursuant to the FERPA regulations. Because FERPA regulations permit entities to share based upon a lawfully-issued subpoena after the school makes a reasonable effort to notify the student’s parents, a school would not violate the Data Practices Act by providing access to private educational data, provided that the school follows the requirements of FERPA. 

The Commissioner also notes that while section 13.32, subd. 3(b), lists “court order” as one of the exclusive circumstances in which an educational authority may share private student data without consent, that state provision does not reference the additional FERPA requirement regarding the reasonable attempt to notify the student’s parents. When releasing private educational data without consent pursuant to a court order, educational authorities must also comply with the FERPA notice requirements. 

Opinion:

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

A school district may disclose private educational data in response to a subpoena, pursuant to Minnesota Statutes, Chapter 13 and the federal Family Educational Rights and Privacy Act, provided it makes a reasonable attempt to notify the student’s parents.

Signed:

Matthew Massman   
Commissioner

October 18, 2018