A Tale of Two Data Practices: Unlike Personnel Data, Educational Data May be Released in Response to a Subpoena without Prior Consent

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Alex D. Ivan
Education Law Attorney
Kennedy & Graven, Chartered

School districts often receive subpoenas duces tecum compelling the disclosure of protected student records as part of a legal proceeding. As just one example, the attorney of a parent in a custody dispute may subpoena education records to be used in a family court case. In a new Advisory Opinion issued on October 18, 2018 (No. 18-014), the Department of Administration clarified that the Minnesota Government Data Practices Act (“MGDPA”) permits schools to release education records without parental consent in response to a lawfully issued subpoena, as long as the school takes reasonable efforts to notify the parent before the disclosure.

An uncertainty had existed among school attorneys as to whether Minnesota law recognized a subpoena as a valid exception to disclosure without consent. The federal Family Educational Rights and Privacy Act (“FERPA”) clearly allows schools to disclose education records pursuant to a judicial order or “any lawfully issued subpoena,” provided the school makes a reasonable effort to notify the parent or eligible student in advance of compliance, so that the parent or eligible student may seek protective action.

Like FERPA, the MGDPA specifically identifies a “valid court order” as one exception to the parental consent requirement. Unlike FERPA, however, the MGDPA does not list a subpoena as another exception. The MGDPA does permit disclosure pursuant to a number of FERPA provisions, including all of 34 C.F.R. § 99.31. And notably, section 99.31, is the FERPA regulation that contains the exception allowing for disclosure of education records pursuant to a lawfully issued subpoena (albeit subject to reasonable advance notice).

Under the MGDPA, private personnel data may only be disclosed in response to a court order, not a subpoena. The law typically affords educational data greater protections than personnel data, suggesting that the Legislature may have intended to make Minnesota law more restrictive than FERPA. But as evidence to the contrary, the MGDPA expressly incorporates FERPA’s subpoena exception. Given this lack of clarity, school districts often took a conservative position that the MGDPA requires a court order (or consent) before educational data could be disclosed.

In Advisory Opinion 18-014, the Commissioner confirmed that the MGDPA does in fact authorize the disclosure of private educational data without parental consent pursuant to a lawfully issued subpoena. The opinion began by noting that data about students is governed by both Minnesota and federal law, but it recognized that educational data is ultimately controlled by FERPA. The Commissioner acknowledged that the MGDPA does not specifically mention a subpoena, but he reasoned that state law nevertheless permits educational data sharing in response to a subpoena because the MGDPA expressly incorporates FERPA’s implementing regulations, among which the subpoena exception is found. Finally, the Commissioner opined that the release must also comply with FERPA’s notice requirements.

Administrators should be cognizant that two distinct standards exist concerning the release of private data. On one hand, the Commissioner’s opinion confirms that private personnel data may only be disclosed pursuant to a valid court order. On the other hand, however, school districts may no longer refuse to release private educational data when they are issued a lawful subpoena, provided the school provides the parent with reasonable advance notice of the release. Somewhat peculiarly, the result is that, in this circumstance, private personnel data receives greater protection against release than educational data.

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.

 Alex D. Ivan is an education law attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact him at (612) 337-9304 or aivan@kennedy-graven.com.

 © Alex D. Ivan (2018). Used by permission.

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