Advisory Opinions from the Data Practices Office of the Minnesota Department of Administration are not legally binding, but compliance with an Advisory Opinion protects a public entity from any damages or penalties in the event an act is challenged in court. Therefore, it is generally advisable to follow the Department’s guidance. School districts should take note of the guidance in two Advisory Opinions from earlier this year addressing issues that commonly present questions for school boards and administrators.
Closing Meetings for Preliminary Consideration of Allegations:
In Advisory Opinion 19-008, a city council hired an outside investigator to look into allegations against the city clerk-treasurer. After deciding to hire the investigator but before the investigation was complete, the council held one or more closed meetings to discuss the allegations.
Notably, the Open Meeting Law permits a public body to close meetings “for preliminary consideration of allegations or charges against an individual subject to its authority.” But “[i]f the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open.”
The city argued that the meetings were appropriately closed because the council had not yet determined whether disciplinary action was warranted. But the Commissioner disagreed with this reasoning and emphasized that meetings must be open after the entity determines that disciplinary action may be warranted. Once the council decided to hire an outside investigator, it had determined that disciplinary action might be warranted; therefore, all subsequent meetings on the topic needed to be open to the public.
The Commissioner acknowledged that such meetings would likely reveal private data, as personnel data is not public under the Data Practices Act until there is a “final disposition” of disciplinary action. But the Open Meeting Law provides that private data may be discussed at open meetings without penalty, “if the disclosure relates to a matter within the scope of the public body’s authority and is reasonably necessary to conduct the business or agenda item before the public body.” Therefore, private data may be discussed at an open meeting and is not an adequate justification for closure.
Based on this opinion, school districts should be mindful of over-exerting the “preliminary consideration” exception to the Open Meeting Law. Once a board has authorized an investigation into alleged conduct, it has decided that discipline may be warranted, and further meetings discussing the allegations are expected to be open to the public.
Access to Surveillance Video of Multiple Students:
In Advisory Opinion 19-004, the Data Practices Office appears to resolve some doubt about the appropriate parental right to access surveillance videos. A parent requested access to a hallway video that depicted an altercation between the parent’s child and another student, with several other students in the background.
The Commissioner referred to 2017 guidance from the Family Policy Compliance Office (“FPCO”), a federal agency that applies the provisions of the Federal Educational Rights and Privacy Act (“FERPA”). The FPCO guidance addressed a parent request for a copy of a video of a hazing incident that depicted several other students. The FPCO concluded that if the school could segregate the data about the parent’s student, FERPA requires it to do so. But if segregation was not possible, FERPA requires that the school allow the parent to view the unredacted video.
The Commissioner agreed with the FPCO’s interpretation and held that, if the District is unable to segregate the image of the parent requester’s student without destroying the meaning of the record, “the District should provide the parents of the students (or eligible student data subjects) involved in the altercation access to the unredacted video in these circumstances.” With respect to the students in the background, as long as the background students’ images “are incidental and not accessible by their names (i.e., in their education records or files or labeled by their names), then the video does not constitute educational data on those students.”
The Opinion did not address whether the District is required to provide a copy of the video to the requesting parent. The FPCO noted that FERPA does not require the District to provide copies of education records to parents and eligible students, but also confirmed that “it would not violate FERPA for the District non-consensually to disclose to an eligible student or his or her parents copies of education records that the eligible student or his or her parents otherwise would have the right to inspect and review under FERPA.” Notably, Minnesota law does require government entities to provide data subjects with copies of their data upon request. Therefore, because FERPA does not prohibit the non-consensual release of a copy if redaction is impossible, it is arguably permissible to release a copy of a video to a parent in these circumstances. In these complex situations, schools should carefully review the specific facts of specific requests and consult with your legal counsel to determine the appropriate response.
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 http://www.kennedy-graven.com.
© Adam C. Wattenbarger (2019). Used by permission.