December 18, 1996; School District 2144 (Chisago Lakes)
12/18/1996 10:15:43 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 PIPA and, with the exception of any data classified as not public, are available for public access.On October 17, 1996, PIPA received a letter dated October 15, 1996, from Douglas Sauter, an attorney representing A. In his letter, Mr. Sauter requested that the Commissioner issue an advisory opinion regarding the possible inappropriate dissemination of data about A maintained by Chisago Lakes Independent School District 2144, hereinafter ISD #2144. By telephone, PIPA staff contacted Mr. Sauter's office in an attempt to clarify the issue he had raised in his letter. Subsequently, Mr. Sauter submitted an amended request, dated October 25, 1996, to the Commissioner. In response to Mr. Sauter's request, PIPA, on behalf of the Commissioner, wrote to Darrold Williams, Superintendent of ISD #2144. The purposes of this letter dated October 29, 1996, were to inform Mr. Williams of Mr. Sauter's request, and to ask him or ISD #2144's attorney to provide information or support for the District's position. On November 15, 1996, PIPA received a response dated November 13, 1996, from Patricia Maloney and Joseph Langel, attorneys representing ISD #2144. A summary of the facts surrounding this matter is as follows. In the spring of 1995, A was a student at a school in ISD #2144. According to Mr. Sauter, during April, A's mother was contacted by the assistant principal and urged to attend a meeting regarding A's safety. At the May 1, 1995, meeting, which both of A's parents attended, several people were present. During the meeting, according to Mr. Sauter, private data about A, which were contained in a report entitled, [A] Behaviors and Interventions 94-95, were disseminated. A copy of this report was provided to the Commissioner. Of particular concern to Mr. Sauter was the dissemination of some of the data in the report data to one of the attendees, W, who apparently had had some interaction with A and whose child also had had some interaction with A. Mr. Sauter stated that in his/her notes regarding the meeting, the assistant principal had written, we tried to show the parents how [A's] behavior is escalating in the number and variety of sexually inappropriate comments [A] is making to staff and other students. As part of his original opinion request, Mr. Sauter had included statements made by A's parents that W disseminated the claim that [A] had raped [W's child] throughout the school which caused [A's] suspension and made [A's] return to school impossible. Mr. Sauter argued that, for several reasons, W should not have had access to the data about A. One is that W's position with the District is that of a paraprofessional that simply supervises the in-school-suspension (ISS) program which is a position that is at the bottom of the hierarchy of employees in a school setting....[W's] job is to supervise and assist students with their regular homeroom activities who have violated a school rule in their homeroom. Mr. Sauter further wrote that W was never involved in any staffing or other meetings involving A, prior to the meeting in May of 1995. In addition, Mr. Sauter noted that in the assistant principal's notes of the meeting, she wrote, [W] was present to let the parents know about a specific sexual comment (threat) made to [W] January 4, 1995. (A copy of these notes was provided to the Commissioner.) Mr. Sauter commented, It was not the school's intent for [W] to evaluate [A] for ISS. As a result, and to the detriment of my client, [W] gained access to [A's] private data at this meeting because of [W's] presence. In their response, Ms. Maloney and Mr. Langel wrote first that the Commissioner has no authority to determine whether a statutory violation has occurred. Second, they argued there was no evidence that private educational data was released. Ms. Maloney and Mr. Langel wrote that the May 1, 1995, meeting was called for the purpose of discussing the discipline of A and that the form of discipline contemplated by the District was suspension from school. Ms. Maloney and Mr. Langel wrote, [W] is a paraprofessional in charge of the Behavior Room. The Behavior Room is where [some students] are sent in order to serve in-school suspensions. [Some students] given in-school suspensions report to [W], who supervises and assists them while they are away from their regular classrooms. Ms. Maloney and Mr. Langel further wrote that at the meeting, which they referred to as lasting only five to ten minutes and consisting of A's parents launching into repeated tirades against the school officials, very little of substance was discussed. They stated, Thus, as a practical matter, [W] was exposed to little or no educational data that [s/he] did not already know about as a result of performing [his/her] job duties. The third argument made by Ms. Maloney and Mr. Langel is that W's work assignment reasonably required that she gain access to any data that were disseminated. They stated that W was at the meeting to convey to A's parents the nature of the underlying incidents as well as to assist in illustrating how those incidents were escalating. Ms. Maloney and Mr. Langel added that W attended the meeting also to explain to A's parents why an in-school suspension was not an option. They wrote, [W] was at the conference to provide information regarding (1) the need for a suspension and (2) the form of the suspension. [The assistant principal's] act of requesting [W's] attendance for those reasons was well within [the assistant principal's] discretion, as [s/he] was merely trying to assemble the personnel who could best relay the information that needed to be discussed.
Issue:
In his request for an opinion, Mr. Sauter asked the Commissioner to address the following issue:
Discussion:
First, the Commissioner must address the statement by Ms. Maloney and Mr. Langel that she (the Commissioner) has no authority to determine whether a statutory violation has occurred. The law firm with which Ms. Maloney and Mr. Langel are employed, Ratwik, Rozak, amp; Maloney, has asserted this very same argument while representing other government entities that have been involved in previous advisory opinions. Each time the argument has been made, the Commissioner's position has been that the Legislature has conferred upon her sufficient authority to address that issue. (For further information, please see Advisory Opinions 93-004, 95-029, and 95-052.) In regard to this Opinion, her position has not changed.
Pursuant to Minnesota Statutes Section 13.32, all data maintained about students by a public educational institution are educational data. Generally speaking, educational data are private data and are accessible only to the data subject (and his/her parents if the subject is a minor, see Section 13.02, subdivision 8), and those persons within the entity whose work assignments reasonably require that they have access to those data. (See also Minnesota Rules Section 1205.0400, subpart 2.) In the present situation, Mr. Sauter has asserted that information discussed (released) at the May 1, 1995, meeting is educational data about A, that the dissemination of those data to W was inappropriate because W's work assignment did not require that W gain access to those data. First, Ms. Maloney and Mr. Langel argued that private educational data were not released at the meeting. They stated that the meeting was very brief and primarily consisted of [A's parents]launching into repeated tirades against the school officials. They also wrote, Because of [A's parents'] outbursts, very little if anything of substance was ever discussed.
However, based on the following statements, it appears to the Commissioner that some of the discussion about A may have come directly from the Behaviors and Interventions report which was created and maintained by ISD #2144. Mr. Sauter wrote:
In response, Ms. Maloney and Mr. Langel wrote, ...only two items were even brought up: [A's] sexually inappropriate comments and...As discussed below, [W] already knew of many of the inappropriate comments... However, regardless of whether W knew about the inappropriate comments, if those data were private government data (created and maintained by ISD #2144 about A) and were then disseminated in W's presence, a dissemination of private data did occur. The next question is whether or not W was entitled to gain access to the private data about A. Minnesota Rules Section 1205.0400, subpart 2, provides that access to private data shall be available to those individuals within the entity whose work assignments reasonably require access to those data. The Code of Federal Regulations, title 34, section 99.31, states that an educational institution may disclose personally identifiable information from an education record of a student without consent if the disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests. Ms. Maloney and Mr. Langel wrote that W was invited to the meeting for two reasons. One is that s/he had personal knowledge of a number of incidents that lead to the need for a conference. They wrote, [W] also knew of some of [A's] past behavior as a result of [his/her] job as a hall monitor....[W] was at the conference to convey to [A's] parents the nature of the underlying incidents that [s/he] was aware of and to help [an ISD #2144 employee] and the other school officials illustrate how those incidents were escalating, thus evincing the need for a suspension. Ms. Maloney and Mr. Langel further wrote, This input is consistent with [W's] job duties, which include helping the professional staff evaluate students. A copy of W's job description was attached to ISD #2144's response. The second reason for W's attendance at the meeting was to explain to [A's parents] why an in-school-suspension was not an option. Ms. Maloney and Mr. Langel wrote that because of the threats and comments A had directed at W, it would not have been possible for A to be placed in ISS with W as the supervisor. Ms. Maloney and Mr. Langel also stated it would not have been feasible for another staff member to take over, or assist with, W's duties. Therefore, W was needed to explain why an out-of-school suspension was the only alternative.
Mr. Sauter argued that W is a paraprofessional that simply supervises the in-school-suspension (ISS) program which is a position that is at the bottom of the hierarchy of employees in a school setting. He further wrote:
Did W's work assignment reasonably require that s/he be entitled to gain access to the private educational data about A? According to the job description provided to PIPA by Ms. Maloney and Mr. Langel, W is a paraprofessional employed by ISD #2144 who works with a certain group of children. Most of W's performance responsibilities are to assist and help the teacher to whom W has been assigned. W's specific responsibility of supervising the behavior room is not listed as one of his/her responsibilities, but helping to evaluate student's progress is included in the list. Given the information provided by both sides of this dispute, any meeting involving A's parents and W was going to be emotionally charged. Regardless, ISD #2144 apparently determined it was necessary to bring the parties together to discuss disciplinary action to be taken against A. The key, however, is whether W had a legitimate educational interest or whether his/her work assignment reasonably required access to the educational data about A that was discussed at the meeting. In their response, Ms. Maloney and Mr. Langel wrote, ...[W] was at the conference to explain to [A's parents] why an in-school suspension was not an option. However, the District did not clarify why it was necessary for W to be present to explain that ISS was not an option. This is troubling given the allegations made against A by W, and the reasonable emotions associated with those allegations. Based on the fact that W is a paraprofessionaland most likely did not make the final determination that an in-school-suspension was not a suitable option, it does not appear that W was needed at a meeting at which sensitive private educational data about A would be discussed. Further, since ISS was apparently not an option, it seems that W was not going to be involved in the discipline of A. Thus, doubt is cast on whether W's presence at the meeting, and the disclosure of private data about A which ensued, was, in actuality, necessary. The logical follow-up question is as follows. If it was not necessary for W to be physically present at the meeting, would ISD #2144 have disclosed the contents of the Behaviors and Incidents report to W in another setting? In their response, Ms. Maloney and Mr. Langel argued why W's presence at the meeting was necessary. However, they did not identify any specific reasons that W's work assignment required access to those data, or that W had a legitimate educational interest in those data. Therefore, it is the Commissioner's opinion, based on the limited information provided, that W should not have been provided access to the data about A. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Sauter is as follows:
Signed:
Elaine S. Hansen
Dated: December 18, 1996
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Educational data
Legitimate educational interest
Work assignment reasonably requires access
Work assignment reasonably requires access (1205.0400, 1205.0600)
