Advisory Opinion 04-013

Facts and Procedural History:

On January 20, 2004, IPAD received a letter from Nancy Plimpton. In her letter, Ms. Plimpton asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from Independent School District 2835, Janesville-Waldorf-Pemberton. Ms. Plimpton's request required clarification with IPAD staff.

In response to Ms. Plimpton's request, IPAD, on behalf of the Commissioner, wrote to Tami Sens, Superintendent of the District. The purposes of this letter, dated January 22, 2004, were to inform her of Ms. Plimpton's request and to ask her to provide information or support for the District's position. On January 29, 2004, IPAD received a response from Ms. Sens. A summary of the facts of this matter follows.

In a letter dated November 20, 2003, Ms. Plimpton wrote to Ms. Sens and requested the following data, under Minnesota Statutes, Chapter 13: directory information for all of your district's current four and five-year old children, third grade children and your district policy on directory information. Ms. Plimpton asked Ms. Sens to provide, in writing, the legal basis if she denied her request.

According to Ms. Plimpton, she called Ms. Sens on December 5, 2003, and she told her that the District was seeking legal advice. I have not heard from her since my call that day.

Ms. Sens provided to the Commissioner a copy of the District's policy, Protection and Privacy of Pupil Records. In her comments, Ms. Sens stated that per that policy, the District does not give out parent's names, addresses, or phone numbers. Ms. Sens also stated:

The district's respect for privacy of student records is also an issue.

JWP does not have educational records on 4 year olds.

JWP district does not believe it is proper for a Charter school to recruit students by using public school resources.

Issue:

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

Has Independent School District 2835, Janesville-Waldorf-Pemberton, complied with Minnesota Statutes, Chapter 13, in its determination regarding a November 20, 2003, request for access to directory information?

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Discussion:

Provisions of both Minnesota and federal law govern access to data about students. 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 CFR Part 99. Subject to limited exceptions, educational data (termed education records under FERPA) are private and may not be released without consent.

One of the exceptions, under section 13.32, subdivision 5, is that any data a district chooses to designate as directory information pursuant to the provisions of FERPA are public. Under the federal regulations, directory information means information contained in an education record of a student . . . . (See 34 CFR section 99.3.)

As Ms. Sens stated, the District chose not to designate parent's names, addresses, or phone numbers as directory information. However, Ms. Plimpton did not limit her request to those data elements. She asked for access to the directory information the District maintains on four- and five-year-olds and third grade children. Five-year-olds who are in kindergarten are students, and therefore the District would have directory information about them. Accordingly, the District must provide Ms. Plimpton with access to any directory information it maintains as soon as possible.

Ms. Sens stated that the District does not have educational records on 4 year olds. It is not clear from that statement whether the District maintains any data on four- and five-year-olds who are not students, and if so, what those data might be. The Commissioner wishes to note that he addressed the same issue in Advisory Opinion 04-011, which dealt with an identical request Ms. Plimpton made of another school district. In that Opinion, the Commissioner opined:

It is not clear just what kind of data the District maintains on four- and five-year-olds who are not students. The Commissioner is aware that it is a common practice for school districts, in connection with making their enrollment projections, to collect so-called pupil census data, which likely include data on some four- and five-year-old children. Pursuant to section 13.32, subdivision 2 (b), pupil census data are educational data, which, as noted above, are private. In the Commissioner's opinion, pupil census data are not eligible for designation as directory information under FERPA. As noted above, directory information is defined as information contained in an education record of a student. Therefore, if any of the data on four- and five-year-olds the District maintains are pupil census data, then the District properly withheld access to those data. The Commissioner wishes to note that although Ms. Plimpton asked for directory information about four- and five-year-olds, this discussion applies generally to data maintained by the District on children, other than District students, of any age.

The Commissioner is aware that there is some confusion on this issue, and wishes to make the following comments. Directory information is the term used in statute and FERPA to denote public data about students. However, the District may maintain other public data on children. For example, the District may also maintain data on children in connection with programs such as early childhood family education. If the District does not consider children participating in these programs to be students for purposes of section 13.32 and FERPA, and if there are no other federal rules governing data about participants in what may be a federal program, then data about children in these programs are presumptively public, under section 13.03, subdivision 1. Although, strictly speaking, Ms. Plimpton asked for access to directory information, what she was wanting was access to public data about children. Therefore, the Commissioner believes the District should review the data it maintains on four- and five-year-olds to determine whether it maintains any public data responsive to Ms. Plimpton's request.

Ms. Plimpton also asked for access to the District's policy regarding directory information. Ms. Sens provided the Commissioner with a copy, and should provide Ms. Plimpton with access to the policy as soon as possible.

Furthermore, according to Ms. Plimpton, after Ms. Sens told her that the District was seeking legal advice, the District did not contact her again about her request. Pursuant to section 13.03, subdivision 2 (a), the District was required to comply with Ms. Plimpton's request in an appropriate and prompt manner. The District also was obliged, under section 13.03, subdivision 3 (f), to provide Ms. Plimpton with its written rationale for its denial of her request.

Finally, regarding Ms. Sens' comment that the District does not believe it is proper for a Charter school to recruit students by using public school resources, the Commissioner reminds his readers that pursuant to section 13.05, subdivision 12, [u]nless specifically authorized by statute, government entities may not require persons to . . . state a reason for, or justify a request to gain access to public government data.

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Opinion:

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

Independent School District 2835, Janesville-Waldorf-Pemberton, erred in its determination regarding a November 20, 2003, request for access to directory information. The District failed its obligation to provide access to public directory information, and access to its policy on directory information. The District also was in error by failing to provide the requested written explanation for its denial of access to data it maintains on four- and five-year-old children residing in the District.

Signed:

Brian J. Lamb
Commissioner

Dated: March 10, 2004

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