Advisory Opinion 04-012

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 2168, New Richland-Hartland-Ellendale-Geneva. Ms. Plimpton's request required clarification with IPAD staff.

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

In a letter dated November 20, 2003, Ms. Plimpton wrote to Mr. Lorenz 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 Mr. Lorenz to provide, in writing, the legal basis if he denied her request.

According to Ms. Plimpton, she called Mr. Lorenz on December 5, 2003, and he told her that 'the District does not have a policy on directory information' and that 'the District does not have a directory'. Therefore, he was not going to send me any information.

In his comments to the Commissioner, Mr. Knutson stated that the District has not adopted a policy regarding directory information. Mr. Knutson discussed the relevant provisions of federal law that provide that a district may choose to designate directory information, but is not required to do so. According to Mr. Knutson, because the District did not elect to designate directory information, it therefore cannot disclose any of the information that could have been designated as directory information.

Issue:

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

Has Independent School District 2168, New Richland-Hartland-Ellendale-Geneva, 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.

As Mr. Knutson discussed, the District is not required to designate directory information, and it has chosen not to do so. Accordingly, it properly denied Ms. Plimpton access to data that have not been designated as directory information.

The District did not, however, provide to Ms. Plimpton its written rationale for its denial, as it was obligated to do under section 13.03, subdivision 3 (f). The District should have written to Ms. Plimpton that it has not designated any educational data as directory information.

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.

The Commissioner also wishes to comment that Mr. Knutson is correct, the District is not obligated to designate any data about students as directory information. However, the practical effect of that decision is that the District is then not allowed, under FERPA and section 13.32, to release to the public individually identifiable data about any of its students without consent. That includes any data about athletes, scholars, award winners, etcetera.

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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 2168, New Richland-Hartland-Ellendale-Geneva, complied with Minnesota Statutes, Chapter 13, in its determination regarding a November 20, 2003, request because it does not maintain directory information. However, the District was in error by failing to provide the requested written explanation for its denial of access to data.

Signed:

Brian J. Lamb
Commissioner

Dated: March 10, 2004

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