A recent Minnesota Supreme Court ruling that a Metro Transit bus passenger may access the video recording of an incident in which the passenger was a data subject—even if the video includes private data about others depicted in the video—threatens the right of students and parents to have their private education records and data be kept private by the schools they attend.
In Burks v. Metropolitan Council, 884 N.W.2d 338 (Minn. 2016), Robert Burks, who is blind, had an argument with a Metro Transit bus driver about the obstacles he encountered as he attempted to board a bus. In the wake of the dispute, Burks requested a copy of the video. Claiming that the video contained private personnel data on the driver, Metro Transit declined to produce it. A lawsuit ensued.
The Supreme Court focused not on whether the video was public or private data, but whether Burks was an “individual subject of the data” under Minn. Stat. § 13.04, subd. 3 of the Data Practices Act. Metro Transit argued that, even though Burks was “a subject of the data” shown on the video, so was the bus driver, and the driver’s right not to disclose private personnel data overrode any right of access Burks would have.
The Court disagreed. It held that an individual’s right to access data in which he or she is a data subject applies to “stored private or public data on individuals,” so it is “irrelevant whether the recording in question is public data . . . or private personnel data.” Therefore, “so long as at least one individual is identifiable as a subject, it does not matter that other individuals may be identifiable as well.” Based on that analysis, passenger Burks was entitled to the data regardless of whether it was the driver’s private personnel data.
The Supreme Court’s decision in Burks is problematic, because it also would seem to apply to requests by data subjects to access school surveillance videos or other investigative data at issue in disputes or altercations between or among school employees and students. Moreover, the Burks decision did not address redaction, and whether redacting personally-identifiable data about others from a video would still comply with a requesting data subject’s rights to the data. Provisions of both the state Data Practices Act (Minn. Stat. § 13.32) and federal law—the Family Educational Rights and Privacy Act (FERPA)—treat most educational data (termed “education records” under FERPA) as private data not subject to disclosure without parent or student consent or a court order.
As a result, prior to Burks, when a school district was asked by a data subject for his or her data in circumstances where the data contained private data about more than one person, a district was expected to attempt to separate the data and provide the requestor with his or her data without releasing private data about the other data subjects. If redaction could not adequately prevent disclosure of private data about other students or employees, the entire document or video sometimes could be withheld.
After Burks, however, an employee involved in an altercation or other misconduct with students can argue that, as a data subject, he or she is entitled to all video or investigative data regardless of whether “other individuals may be identifiable as well,” even if those individuals are students and even if the data is classified as private educational data.
Even though Burks may represent current Minnesota law, it remains to be seen whether school districts will have to provide unredacted video footage or unredacted data to such an employee or whether it must follow its FERPA obligation not to disclose such private educational data without consent. If the Data Practices Act and FERPA are held by the courts to be in conflict on this issue, Burks will likely have to yield to the supremacy of federal law as set forth in FERPA. •
This article is intended to provide general information with commentary. It should not be relied upon as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Greg Madsen is an attorney and shareholder at Kennedy & Graven, Chartered, who practices education and employment law, and is certified by the Minnesota State Bar Association as a Labor and Employment Law Specialist. For more information, please contact him at (612) 337-9305 or www.kennedy-graven.com.
© Gregory S. Madsen (2017). Used by permission.