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Advisory Opinion 98-033

June 16, 1998; School District 11 (Anoka-Hennepin)

6/16/1998 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.

Note: Minnesota Statutes, section 124E.03 (previously section 120.064) was amended in 2009; charter schools are now subject to Minnesota Statutes, Chapters 13 and 13D.

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, except for any data classified as not public, are available for public access.

On October 29, 1997, PIPA received a letter from Paul H. Cady, attorney for Independent School District 11, Anoka Hennepin, in which he asked the Commissioner to issue an opinion regarding the classification of certain data maintained by the District. In response to Mr. Cady's request, PIPA staff continued to seek clarification from Mr. Cady until he renewed his request on April 23, 1998. A summary of the detailed facts of this matter follows.

The District conducted an investigation concerning allegations made against the PACT Charter School, which the District sponsors pursuant to Minnesota Statutes Section 120.064. According to Mr. Cady, the data in question, various exhibits, consists of information relating to individuals who are former employees, current employees, and volunteers of PACT.

In addition, the data contained in one document relate to a PACT student.

Issues:

In his request for an opinion, Mr. Cady asked the Commissioner to address the following issues:

Pursuant to Minnesota Statutes Chapter 13, what is the classification of the data in Exhibit No. 1a which have been redacted from the investigation report set forth in Exhibit No. 1b?
Pursuant to Chapter 13, what is the classification of the data contained in Exhibits Nos. 10, 13-23, and written summaries?

Discussion:

Pursuant to Minnesota Statutes Section 120.064, subdivision 7, [a] charter school is a public school and is part of the state's system of public education. Except as provided in this section, a charter school is exempt from all statutes and rules applicable to a school, a school board, or a school district, although it may elect to comply with one or more provisions of statutes or rules.

Minnesota Statutes Chapter 13, the Minnesota Government Data Practices Act, is not one of the statutes with which a charter school must comply. According to information provided to the Commissioner, PACT has not taken any formal action to comply voluntarily with Chapter 13. Had it done so, then, inter alia, data about its employees would be classified as personnel data under Section 13.43.

However, the District is a government entity subject to Chapter 13 regulation. Pursuant to Section 13.02, subdivision 7, government data are all data collected, created, received, maintained or disseminated by any government entity such as District 11.

Pursuant to Section 13.03, subdivision 1, government data are presumed to be public unless otherwise classified by statute, temporary classification (see Section 13.06), or federal law. Therefore, data maintained by the District, including data about current and former PACT employees and volunteers are subject to Chapter 13, and do not appear to be classified as not public by any provision of state or federal law. Accordingly, the data which have been redacted from the investigative report, i.e., the identities of current and former PACT employees and volunteers, are public, under the presumption provided at Section 13.03, subdivision 1.

Exhibit 23 consists of earnings statements of PACT employees, not District employees, which contain Social Security numbers (SSNs) and certain income tax withholding information. Pursuant to Section 13.49, the SSNs are private data. Mr. Cady did not provide any citations to state or federal law that classify as not public tax withholding data maintained by the District, and the Commissioner is not aware of any such provision.

With respect to any data in these exhibits that identify and relate to a student, Mr. Cady states that the District believes that data about PACT students are regulated under Title 20 of the United States Code, Section 1232g, the federal Family Educational Rights and Privacy Act of 1974 (FERPA). If the PACT charter school receives funds for which the United States Secretary of Education is responsible, then Mr. Cady is correct that it is subject to FERPA. (See the Code of Federal Regulations, Title 34, Part 99.1.) Under FERPA, data that relate to a student cannot be disclosed without consent, with certain exceptions that do not apply here. In effect, FERPA classifies most data about students as private. Exhibit 10, and some of the interview summaries (for example, Mr. Graham's interview) contain data about individual students. Those data are private, and must be redacted before the Exhibits and summaries may be provided to the public.

Opinion:

Based on the facts and information provided, my opinion on the issues raised by Mr. Cady is as follows:

Pursuant to Minnesota Statutes Chapter 13, the data in Exhibit No. 1a which have been redacted from the investigation report set forth in Exhibit No. 1b are classified as public.
Pursuant to the federal Family Educational Rights and Privacy Act of 1974, data contained in Exhibit 10 and some of the interview summaries that identify and relate to individual students are private.
Pursuant to Section 13.49, Social Security numbers contained in Exhibit 23 are private data.

Signed:

Elaine S. Hansen
Commissioner

Dated: June 16, 1998

Educational data

Charter schools