Issue:

In her request for an opinion, Ms. Kjellberg asked the Commissioner to address the following issue:

Discussion:

Pursuant to Minnesota Statutes, section 13.04, individual subjects of public and private government data have a right to gain access to data about themselves. The Xs requested copies of data relating to their minor child, Y, to which they are entitled under section 13.02, subdivision 8.

According to Mr. Knutson, the report in its entirety consists of data that are not about Y. He asserts that the data are classified as private or confidential or are otherwise not accessible to the Xs under one or more provisions of Minnesota Statutes, namely sections 13.39 (civil investigative data), 13.32 (educational data), 13.43 (personnel data) and 13.393 (attorney data.)

In order for government data to be classified as not public under section 13.39, the data must be collected as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action. Whether a civil legal action is pending shall be determined by the chief attorney acting for the government entity.

According to Mr. Knutson:

In early meetings with the School District to discuss this matter, the Xs indicated that they had retained counsel and would pursue their legal rights if necessary. At the direction of the Superintendent, counsel for the School District conducted a comprehensive investigation into the complaints. The reason for the investigation was two-fold: (1) to look into the Xs's complaints that [Y] had been sexually harassed and determine what, if any, action should be taken; and (2) to collect data for the School District for the purpose of defending a potential lawsuit brought by the Xs against the School District.

Thus, according to Mr. Knutson, the entire report is classified as confidential under section 13.39.

Mr. Knutson stated that even absent a threat of pending civil litigation, the data are classified under sections 13.32 and 13.43 such that they are not accessible to the Xs. Citing a Minnesota Appellate Court case, Edina Educ. Ass'n v. Board of Educ. of Indep. Sch. Dist. No. 273, 562 N.W.2d 306, 311 (Minn. Ct. App. 1997), Mr. Knutson stated: [w]hile the report does contain references to [Y], this data was incidental to the other children's behavior . . . .

According to Mr. Knutson, the data in question are either data about students other than [Y], or about District employees, about whose conduct the Xs's complained. Regarding the employees, Mr. Knutson stated: [i]n this case, once the investigation was complete, the School District took appropriate action. The measures taken, however, did not constitute final disciplinary' action within the meaning of the statute.

Mr. Knutson further stated:

In this case, the School District determined that it would not be possible to redact the report such that the identity of other protected individuals (students and employees) would remain private. The School District thus determined that, independent of its otherwise valid decision to classify the report as confidential under Section 13.39, it was required to withhold the entire report as private educational and personnel data under Sections 13.32 and 13.43.

Regarding the applicability of section 13.393, Mr. Knutson wrote:

In determining whether data is Section 13.30 [this section was renumbered to section 13.393 by the Revisor of Statutes in 2000] data, the Commissioner has found that two conditions must hold. One, that the attorneys generated the data in the course of acting in their professional capacity for the School District, and two, that the attorneys were not performing duties that are required to be performed by the School District's responsible authority and therefore not relieving the responsible authority of his/her duties and responsibilities under Chapter 13 and Section 15.17.

According to Mr. Knutson, two sections of the report are section 13.393 data and therefore are not government data for purposes of Chapter 13. He stated: [i]n the Discussion and Analysis section, the School District's attorneys review the information collected and analyze it in light of the complaints alleged and the School District's legal position relative thereto. The Recommendations section contains the School District's attorneys' legal advice for responding to the complaints and information received during the investigation.

Finally, Mr. Knutson stated that he had consulted with staff of the United States Department of Education Family Policy Compliance Office and the Office of the General Counsel regarding the applicability of 20 U.S.C. section 1232g, or FERPA, to the Xs's right to gain access to the report. According to Mr. Knutson, as to each of the above named defenses, FERPA does not require a contrary result. . . . In addition, those who enforce FERPA . . . advise governmental entities to read FERPA consistent with applicable state laws. . . . Similarly, the agency does not interpret FERPA to require results inconsistent with state laws, including laws that interpose a civil investigative privilege.

The Commissioner has the following comments. As noted above, in situations in which the chief attorney acting for a government entity determines that a civil legal action is pending, data collected as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as confidential under section 13.39.

Mr. Knutson stated that those conditions hold here, and therefore, the entire report is confidential and may be withheld from the Xs. In his reference to his consultations with the U.S. Department of Education, Mr. Knutson did not state whether he discussed specifically the applicability of section 13.39. He did not provide any documentation or ruling from the federal government. However, under FERPA, parents are entitled to gain access to the education records of their minor children. (See FERPA Section 1232g(a)(1)(A).)

Further, according to a 1996 letter from the Director of the Department of Education Family Policy Compliance to the President of Moorhead State University, involving the same issue, i.e., whether an educational institution may deny a student access to her education records on the basis of section 13.39, the Office stated that to the extent that section 13.39 conflicts with the FERPA provisions and the educational institution wishes to continue to receive federal funds, the school must comply with FERPA and provide the student with access to her education record. In that letter, the Director stated:

Additionally, please provide assurance that appropriate steps have been taken to inform school officials that notwithstanding State law, it is a requirement of Federal law to provide students access to their education records within 45 days of each request, and that failure to comply with FERPA could impact on the school's receipt of federal funds. . . . .

Please note that FERPA establishes requirements with which a recipient must comply if it desires to continue receiving certain Federal funds; it does not preempt conflicting State laws. Thus, FERPA would not prohibit educational agencies and institutions from complying with a Minnesota State law requirement that prohibits release of certain records regarding investigations to the individual subject of that data. However, compliance with Minnesota law may jeopardize continued eligibility to receive Federal education funds. It appears that the State law in question is in conflict with FERPA. It is therefore recommended that you bring this matter to the attention of the appropriate officials of Minnesota.

FERPA also requires that if an educational agency or institution cannot comply with FERPA due to a conflict with State or local law, it shall notify this Office within 45 days, giving the text and citation of the conflicting law.

(See U.S. Department of Education, letter to Dr. Roland Barden, Complaint No. 0517, 1996.)

Assuming that the Family Policy Compliance Office would take the same position with the District that it did with Moorhead State University, it appears that the District cannot withhold data from the Xs on the basis of section 13.39.

In general, under section 13.32, and provisions of FERPA, data about students other than Y are not available to the Xs. Accordingly, data in the report that identify students other than Y are private data about the other students and the District may not release those data to the Xs. However, the Commissioner questions the District's assertion that any mention of Y in the report is only incidental. Given the nature of the report, i.e., an investigation into allegations of incidents of harassment of Y, and actions taken by the District in response, it seems unlikely that there would be no data of which Y is the subject. The Commissioner urges the District to reevaluate its conclusion.

Regarding the applicability of section 13.43, which governs data about public employees, certain data related to and stemming from complaints and/or charges made about employees are classified as public: the existence and status of any complaints or charges against the employee; and the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action. If there is no final disciplinary action with the meaning of section 13.43, then very limited data about the complaint are public, i.e., only the existence and status of the complaints or charges against the employee.

According to Mr. Knutson, the District did not take final disciplinary action against any employees as a result of its investigation. Mr. Knutson stated the existence of complaints against particular School District employee(s) was known to the parents (since they initiated the complaint) and its status was revealed to them in the Superintendent's February 9, 2001 letter. Although it is not clear from the record whether the Xs requested access to public data about the status of a complaint made about a specific employee, if they did, the District did not respond properly. All the District released was the statement: [t]o the extent that the investigation revealed problems with any individual employee of the School District, the School District is taking appropriate action. That statement does not respond to a request for the status of a specific complaint about a specific employee. The District did properly withhold private personnel data, i.e., the other data about the employee(s) related to the investigation, from the Xs.

The Commissioner did not review the report. Therefore, he cannot determine whether Mr. Knutson's assertion that it is not possible to redact the report such that private data about other students and employees would remain private is appropriate.

Regarding the applicability of section 13.393, which governs data generated by an attorney acting in a professional capacity for a government entity, because the investigation was conducted by attorneys for the District, Mr. Knutson is correct that certain portions of the report may be withheld from the Xs on the basis that Chapter 13 does not regulate attorney data. However, this raises the troubling issue that if, in another District, such an investigation were conducted by District personnel other than attorneys, the resulting classification of the data might be different. The Commissioner does not believe the Legislature intended a government entity to be able to cut off parents' access to data about their children on the basis of the status of the person chosen to conduct investigations of allegations that a child was sexually harassed at a school.

In addition, the Commissioner notes that, although the letter from the U. S. Department of Education referred to above addressed the interplay between FERPA and section 13.39, it may have applicability to section 13.393 as well. However, in light of the broad protection conferred upon attorney data by the Minnesota Supreme Court (see Kobluk v. University of Minnesota, 574 N.W.2d 436 (Minn. 1998)), the Commissioner agrees with Mr. Knutson that the District may withhold some data on the basis of section 13.393. (For further discussion of this issue see Advisory Opinion 99-003.)

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Ms. Kjellberg is as follows:

Signed:

David F. Fisher
Commissioner

Dated: May 1, 2001