Last year, the Minnesota Supreme Court made waves in data practices law when it held, in Burks v. Metropolitan Council, 884 N.W.2d 338 (Minn. 2016), that an individual who was the subject of a video recording was entitled to access the recording under the Minnesota Government Data Practices Act (“MGPDA”), even if the recording also contained private personnel data on another individual. It “does not matter,” the Court held, that other individuals may be identifiable as subjects of the data; pursuant to the statute, the requesting data subject was entitled to access the recording.
This decision left many concerning and unanswered questions for school districts, particularly regarding the private educational data of students. Burks was not decided in the context of educational data, nor did it address obligations under the federal Family Educational Rights and Privacy Act (“FERPA”). But the decision was written broadly, raising concerns about a data subject’s right to access records that intermingle private data on students or employees.
A recent Advisory Opinion (17-010) from the Minnesota Department of Administration Data Practices Office attempts to shed some light on these questions. The opinion addressed an audio recording of an investigative interview of a student, in which the student identified and discussed other students. The student’s parent requested a copy of the recording, but the school district believed it could not provide access because the requesting student’s data was inextricably intertwined with private data on other students.
A previous court of appeals decision, Northwest Publications, Inc. v. City of Bloomington, 499 N.W.2d 509 (Minn. App. 1993), established that an entire record could be withheld when public and nonpublic data is “so inextricably intertwined that segregating the material would impose a significant financial burden and leave the remaining parts of the document with little informational value.” But in the recent Advisory Opinion, the Commissioner of the Department of Administration rejected the application of this “inextricably intertwined” principle to the audio recording at issue. The Commissioner expressed skepticism that it was actually impossible to effectively redact the recording, but in any event declined to extend the Northwest Publications standard to cases in which private data is intertwined with other private data.
The Commissioner acknowledged, however, that student data is governed by both the MGDPA and FERPA. Under FERPA, the parent of a student has the right to “inspect and review only such part of such material or document as related to such student or to be informed of the specific information contained in such part of such material.” Therefore, if a district cannot easily separate a student’s education records from those of other students, it must “inform” the requesting parent of the specific information about that student. Although the MGDPA does not require public entities to create data or provide it in a different format than it was maintained, the Commissioner suggested that, in the case of this lengthy, wide-ranging recording, preparing a responsive document to inform the parent of the contents might be appropriate. In other less-involved circumstances, the Commissioner suggested that a district might be able to fulfill this obligation verbally. “Ultimately,” the Commissioner said, “the District is in the best position to determine how to inform Parent about the specific information on Student in the recording.”
Notably, informal FERPA guidance has also suggested that, in the case of a video recording in which multiple students are subjects (as opposed to background bystanders), a school may allow a requesting parent to view a video, but may not receive a copy without consent of the other students’ parents. The Commissioner did not address this possibility.
Between Burks and this Advisory Opinion, it is clear that any attempt to completely withhold an entire document or recording on the basis that it is intertwined with other private data will be met with skepticism. Schools should make every effort to redact other individuals’ private data in order to comply with a data subject’s request. When possible, it may be helpful on the front end to consider strategies for creating or maintaining records in ways that prevent excessive intermingling or allow for easy redaction.
The Commissioner appears to have recognized, however, that even if the MGDPA would compel disclosure post-Burks, FERPA provides an additional layer of protection for educational records. Parents’ requests to access data about their students must be honored, but under FERPA, they are not entitled access to the intertwined private educational data of others. •
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Adam Wattenbarger is an education law attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact him at (612) 337-9306 or www.kennedy-graven.com.
© Adam C. Wattenbarger (2017). Used by permission.