| Would Independent School District 701, Hibbing, violate Minnesota Statutes, Chapter 13, if it released to the school district's Pupil Support Assistants (as a group), the following data about students with disabilities: name, disability of the student, and services to be provided to a student in accordance with an IEP? |
Discussion:
Provisions of both Minnesota and federal law govern access to data about students and their parents. Minnesota Statutes, section 13.32 classifies data relating to students (termed educational data ) and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing Rules, 34 C.F.R. Part 99. Subject to limited exceptions, educational data (termed education records under FERPA) are private and may not be released without consent.
One exception is that private educational data can be released to individuals within the entity whose work assignments reasonably require access. (See Minnesota Rules, section 1205.0400.) The corresponding language in FERPA states that data can be released 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. (See 34 C.F.R. section 99.31(a)(1).) Furthermore, 34 C.F.R. section 99.7(a)(3)(iii) states that if a district has a policy of disclosing records under section 99.31(a)(1), the district must include in its annual notification to parents a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.
School districts also must consider the federal Individuals with Disabilities Act (IDEA) when the student in question has a disability. Of relevance here, IDEA generally follows the provisions of FERPA and states that in an educational institution, such as the District, parental consent must be obtained before personally identifiable information is disclosed to anyone other than officials of participating agencies. (See 34 C.F.R. section 300.571.) Also, each participating agency shall maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information. (See 34 C.F.R. section 572 (d).) Participating agency is defined as any agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained. (See 34 C.F.R. section 300.560(c).)
In his opinion request, Mr. Colosimo wrote:
AFSCME Council 65 takes the position that disclosing the name, disability, and services to be provided to a special needs student to all of the PSAs is an internal posting which does not violate any of the aforementioned laws or statutes.
The school district's position is that the release of the data and information to the PSAs - as a group - regarding the teacher/student would be inappropriate if not illegal. Until an individual PSA is assigned to work with a specific student with disabilities, he/she has no legitimate educational interest in data or information involving that student. To give all of the PSAs the identities and disabilities of every student receiving services would give them data which is otherwise private on or about students with whom they may never be working and about whom they have no educational interest.
The school district believes that the disclosure of this information could result in special ed sanctions and a due process complaint by the parents of the students with disabilities. The release of this information would violate the student's IEP and also the Individuals with Disabilities Education Act (IDEA) and the Family Educational Rights and Privacy Act.
In analyzing Mr. Colosimo's question, the Commissioner reviewed language in FERPA as well as information from the Family Policy Compliance Office (FPCO) of the United States Department of Education. The FPCO implements FERPA and another federal educational law, both of which seek to ensure student and parental rights in education. As part of its work, the FPCO handles complaints from parents and students regarding FERPA.
The following is contained in FPCO's Model Notification of Rights for Elementary and Secondary Schools:
... One exception, which permits disclosure without consent, is disclosure to school officials with legitimate educational interests. A school official is a person employed by the School as an administrator, supervisor, instructor, or support staff member (including health or medical staff and law enforcement unit personnel); a person serving on the School Board; a person or company with whom the School has contracted to perform a special task (such as an attorney, auditor, medical consultant, or therapist); or a parent or student serving on an official committee, such as a disciplinary or grievance committee, or assisting another school official in performing his or her tasks. A school official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibilityhellip;.
Also distributed by FPCO is a document entitled, Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies, National Forum on Education Statistics, NCES 2004-330. Washington, DC: 2004. This document provides some relevant guidance:
In determining the school officials who might need access to education records, it is more practical to establish broad position criteria than to list exactly who, or what individual positions, qualify. General criteria such as the following might be useful:
- a person employed by the agency or school in an administrative, counseling, supervisory, academic, student support services, or research position, or a support person to these positions; or
- a person employed by or under contract to the agency or school to perform a special task.
Identifying a person as a school official does not automatically grant him or her unlimited access to education records. The existence of a legitimate educational interest may need to be determined on a case-by-case basis. A sample policy statement of what constitutes legitimate educational interest might include substantiation such as the following:
- the information requested if necessary for that official to perform appropriate tasks that are specified in his or her position description or by a contract agreement.
- the information is to be used within the context of official agency or school business and not for purposes extraneous to the official's areas of responsibility or to the agency or school.
- the information is relevant to the accomplishment of some task or to a determination about the student.
- the information is to be used consistently with the purposes for which the data are maintained.
In the case at hand, Mr. Colosimo did not provide information regarding whether the District, in its annual notification, has defined PSAs as school officials with legitimate educational interest. If the District has not, it should do so promptly.
As to whether all the PSAs have a legitimate educational interest in private data about each of the District's special needs students, it seems, based on the guidance provided in the Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies, that individual PSAs should have access only to the private data of students with whom those PSAs will have interaction as part of their work. The specifics of who gets access to what data is up to the District to determine as the District has authority, as well as an obligation, to establish policies about which officials/employees have legitimate educational interests to private data. Mr. Colosimo did assert that some of the PSAs might never work with some of the special needs students. Thus, it would seem inappropriate for the District to release private data about students to PSAs who have no educational interest in the information.
Mr. Colosimo specifically mentioned the process of assigning PSAs to special needs students. If the District can make those assignments without releasing private data about individual students to PSAs who will not have interaction with those students as part of their work assignments, it should do so. If, however, the process requires all PSAs to have access to identifying data about all the special needs students, the District should clearly state that in its policy relating to legitimate educational interest.
Finally, the District must heed the provision in IDEA that requires a current listing of the names and positions of those employees within the District who may have access to personally identifiable data.
Opinion:
Based on the facts and information provided, my opinion on the issue that Mr. Colosimo raised is as follows:
| Independent School District 701, Hibbing, would not be in compliance with Minnesota Statutes, Chapter 13, if it released the following data about students with disabilities - name, disability, and services to be provided in accordance with an IEP - to PSAs whose work assignments do not require that they gain access and who have no legitimate educational interest in the data. |
Signed:
Dana B. Badgerow
Commissioner
Dated: June 16, 2005
