Issue:

Discussion:

Given the information provided the Commissioner by T's mother, the Commissioner respectfully disagrees. In her opinion request, T's mother wrote, Information disclosed pertained to [a flare-up of a specific medical condition which is T's] my judgement on a medication change. Also an incident between [T's]...teacher, myself, my husband and [T] in regards to [the flare-up of a special medical condition which is T's] and a communication not [sic] book that is a log for [T's medical condition]. In these comments, T's mother states clearly that data or information about T was disclosed, e.g. the fact that T's medical condition had flared-up, the fact that T's medication had been changed, and the fact that an incident had occurred between T's mother, T's teacher, and T's mother's husband. While the Commissioner agrees that some of the data apparently disclosed by District 777 appear to be about T's mother, much of the data are clearlyalso about T. However, it should be noted, pursuant to Section 13.32, subdivision 2 (b), that data concerning parents are also educational data and therefore, are classified as private.

Second is the assertion by Ms. Blumstein and Mr. Rupp that the Commissioner lacks the authority to render opinions on the application of FERPA, The Minnesota legislature has not and, in fact, could not, grant the Commissioner the authority to render advisory opinions on the application of FERPA. There are a variety of reasons why the Commissioner may find it necessary to discuss the requirements of FERPA in an opinion. First, some of FERPA's provisions have been incorporated into Chapter 13. Second, the advisory opinion enabling language, Section 13.072, authorizes the Commissioner to give a written opinion regarding the person's rights as a subject of government data or right to have access to government data. Nothing in this language prohibits the Commissioner from commenting on federal law which affects the rights of the person.

Third is the assertion by Ms. Blumstein and Mr. Rupp that nothing in Section 13.072 gives the Commissioner the right to determine whether a violation of Minnesota or federal law has occurred or to make findings of fact. This argument is now quite familiar to the Commissioner as Ms. Blumstein and some of her colleagues have included it in their responses to several other opinion requests. In Advisory Opinion 95-029 the Commissioner quoted from Advisory Opinion 93-004:

The Commissioner's position on the aforementioned issue raised by Ms. Blumstein and Mr. Rupp has not changed since Ms. Blumstein raised the same issue in connection with Advisory Opinion 93-004 and her colleague, Mr. Foy, raised the same issue in connection with Advisory Opinion 95-029.

T's mother requested this opinion because she is concerned that School District 777 inappropriately disseminated data about T. It should first be noted that, pursuant to Section 13.32, subdivision 1 (a), data on individuals maintained by a public educational agency or institution which relate to a student are termed educational data. Pursuant to Section 13.32, subdivision 3, educational data are private data on individuals and can be disclosed in only very limited circumstances. Also, as previously mentioned, Section 13.32, subdivision 2 (b), defines data concerning parents as educational data. Therefore, regardless of whether the data are about T and/or T's mother, the data are private.

One exception to the strict statutory requirements regarding disclosure of private data was created by the Minnesota Court of Appeals in Keezer v. Spickard. In this case, the court wrote:

As applied to the situation at hand, if the data about T (and/or T's mother), disclosed by the school psychologist to the school secretary, were not recorded somewhere other than in the mind of a government employee, those data are not government data and are not subject to the requirements of Chapter 13.

In their response, Ms. Blumstein and Mr. Rupp stated that District 777 conducted a thorough investigation into T's mother's complaint and determined that the data communicated by the school psychologist to the school secretary had not been recorded, The only information communicated by the psychologist to the secretary consisted of the psychologist's unrecorded thoughts and apprehensions, her general unrecorded observations about the parent or other unrecorded information. Further, Ms. Blumstein and Mr. Rupp stated:

Even thought there does appear to be a dispute regarding whether the data in question are data about T or about T's mother (or about both T and T's mother), the facts as presented by Ms. Blumstein and Mr. Rupp (that no data were ever recorded regarding the incident described by T's mother), coupled with the reality that nothing in T's mother's letter indicates otherwise, lead the Commissioner to conclude that the data in question, based on Keezer v. Spickard, are not government data. Therefore, it appears that no violation of Chapter 13, Minnesota Rules Chapter 1205, or FERPA has occurred.

However, since the conclusion reached in this opinion relies upon a court decision of which T's mother may or may not be aware, it is important to note that had her opinion request contained additional information regarding whether the data were or were not recorded, the result of this opinion might have been different.

Opinion: