This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

X (a pseudonym used pursuant to section 13.072, subdivision 4) requested an advisory opinion about a determination that Independent School District 51 – Foley Public Schools (District) – made regarding data about X’s student, Y, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act).

X provided the following summary of the facts:

At the beginning of each school year… I provide the Superintendent of Foley Public Schools (referred to as District hereafter) with a written letter requesting non – disclosure of Directory Information (FERPA (§ 99.37(a)(2)). For your reference, I have enclosed a copy of the letter. Under the provisions of the Family Educational Rights Privacy Act (FERPA) of 1974 (20 U.S.C. § 1232g; 34 CFR Part 99), we have submitted the request of non - disclosure.

In the Benton County News newspaper…, my child’s name [Y] is listed in the Honor Roll section of the newspaper. For your reference, I have enclosed a screen capture of the Honor Roll with a pencil pointing to my child’s name. According to the District’s Policy 515 Protection and Privacy of Pupil Records, Honors and Awards Received are not listed as Directory Information.

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Issue:

Based on the opinion request, the Commissioner agreed to address the following issue: Did Independent School District 51, Foley, comply with Minnesota Statutes, Chapter 13, when it disclosed the name of a student on the honor roll to a local newspaper after the student opted out of directory information disclosures?

Discussion:

“Educational data” are, “data on individuals maintained by a public educational agency or institution or by a person acting for the agency or institution which relates to a student.” (See Minnesota Statutes, section 13.32, subdivision 1.) Federal law defines an “education record” as, “those records that are (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.” (See 34 C.F.R. 99.3.)

The Data Practices Act classifies most data relating to students as private and incorporates the provisions of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232g, and its regulations, 34 C.F.R. Part 99. (Section 13.32, subd. 1.) Both laws provide for access rights of students and their parents and privacy protections that limit access by others.

Private educational data are not accessible to the public and may only be shared with individuals designated as school officials by an educational agency or institution, with the informed consent of the parents or eligible students, or with a specific authorization in law. (See 34 CFR 99.31, Minnesota Statutes, section 13.05, subdivision 4, and Minnesota Rules 1205.0400.)

Directory information is an exception to the private classification of data about students. “‘Directory information’ means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed." (See 34 CFR 99.3). Directory information may include a student’s name, address, photograph, participation in sports or activities, awards, and honors, among other data elements. Under Minnesota law, data that a school properly designates as directory information are public. (See section 13.32, subdivision 5, and Advisory Opinions 01-078, 04-011, 04-065, and 09-021.)

Public schools may also designate certain information as limited directory information. (See 34 CFR 99.37(d) and Advisory Opinion 14-009.)

Parents and eligible students have the right to opt out of all or part of a public school’s designation of directory information. (See 34 CFR 99.37(a).) The result of the opt-out is that designated directory information remains private data on the student.

In response to the Commissioner, the superintendent wrote on behalf of the District, “I have and continue to notify parties in our school system regarding the denial of directory information in relation to this family. The honor roll publication was an oversight at the high school level.”

The Commissioner appreciates the District’s candor. X has opted out of all of the District’s directory information disclosures about Y. Therefore, identifiable data about Y are private data. By releasing Y’s name to the newspaper without the consent of Y’s parents, the District did not comply with the Data Practices Act and FERPA.

The Commissioner offers the following additional comments. The Commissioner reviewed the District’s Policy 515 on the protection and privacy of pupil records. The District’s definition of “directory information” is taken directly from the FERPA regulations. It contains awards and honors (not relevant to the conclusion here, as X opted out of all disclosures about Y), but the policy also uses the phrase “includes, but is not limited to,” prior to listing the various elements that the District could designate as directory information.

The imprecise language in the District’s notice does not seem to provide parents and students with the information needed to make informed decisions about opting out of directory information disclosure. The policy seems to suggest that the District may add to the list of directory information after it provides its annual notice to parents. The Commissioner encourages the District to revisit its policy to make clear which specific data elements it has designated as directory information or limited directory information, so parents and eligible students can make informed decisions about their rights under the law.

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Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:

Independent School District 51, Foley, did not comply with Minnesota Statutes, Chapter 13, when it disclosed the name of a student on the honor roll to a local newspaper after the student opted out of directory information disclosures.

Signed:

Alice Roberts-Davis
Commissioner

December 8, 2021