Advisory Opinion 07-016

Facts and Procedural History:

On May 17, 2007, IPAD received a letter from Michael Waldspurger and Amy Mace, attorneys representing Independent School District 709, Duluth. In their letter, Mr. Waldspurger and Ms. Mace asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD asked for clarification, which Mr. Waldspurger and Ms. Mace provided in a letter dated June 15, 2007.

A summary of the facts is as follows. In their opinion request, Mr. Waldspurger and Ms. Mace wrote:

The School District regularly videotapes certain locations within its schools. ... One of the locations routinely taped in [a District school] is the school's gymnasium. ... The security cameras are programmed to tape any activity in the gymnasium, regardless of whether the activity is open or closed to the public.

[An athletic event was held.] The ... video shows an incident involving [a student] that occurred after the [athletic event]. The incident occurred between [the student] and an adult [who was not acting as a District employee during the event] ... The athletic event was open to the public. ...

Besides the [student] and the adult who engaged in the interaction, the surveillance video contains images of other students of the School District, District employees, and public spectators. Although the surveillance video is fuzzy, because the [student] in question attends school in the District and thus knows various students and staff members, [s/he] would be able to identify students and employees of the District who are shown on the video.

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Issue:

Based on Mr. Waldspurger and Ms. Mace's opinion request, the Commissioner agreed to address the following issue:

Are the data on the videotape classified as private educational data pursuant to Minnesota Statutes, section 13.32 and/or private personnel data pursuant to Minnesota Statutes, section 13.43?

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Discussion:

Data that school districts maintain are government data. (See Minnesota Statutes, section 13.02, subdivision 11.)

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

Generally, section 13.32 and provisions of the federal Family Educational Rights and Privacy Act (FERPA) (see 20 U.S.C. section1232g, and its implementing Rules, 34 CFR Part 99) classify data about students as private. One of the exceptions is that any data a school district designates as directory information are public.

Data about individuals who are employees of a government entity are classified pursuant to section 13.43.

At issue before the Commissioner is whether some of the data in a videotape the District created at a public athletic event are classified as private educational and/or personnel data. The Commissioner addressed a similar issue in Advisory Opinion 03-010:

The answer to the second part of Issue 2, i.e., a videotape the District made at a public event, such as an athletic contest that is open to the public, is more complicated. If the District has designated photographs and other types of information about athletes as directory information, it seems fairly clear the data on the videotape are public. However, if that is not the case and some of the data on the videotape are private, the District's refusal to release the tape may create an absurd result. By agreeing to participate in an event held at a public place, the students and any employee coaches have, in effect, given consent for data about them to be released. The fact that the District videotaped the athletic contest does not change the practical effect of the students and coaches agreeing to participate, i.e., who participated, how they participated, and what happened is all public.

The Commissioner's position has not changed. Here, because the athletic event was open to the public, any incidents that occurred during the event could have been viewed by any of the people in attendance. Thus, although certain data in the videotape may be private, the students and employees present at the event - either as participants or spectators - have, in effect, given consent for data about them to be released.

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Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. Waldspurger and Ms. Mace raised is as follows:

Although a videotape of a public event, such as an athletic contest that is open to the public, may contain private data, practically speaking, the data subjects have given consent to release those data by participating in the event. Therefore, the data in the videotape are not classified as private educational data pursuant to Minnesota Statutes, section 13.32 and/or private personnel data pursuant to Minnesota Statutes, section 13.43.

Signed:

Dana B. Badgerow
Commissioner

Dated: August 16, 2007

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