LEGAL UPDATE Terence Morrow, MSBA Director of Legal and Policy Services

LEGAL UPDATE

Navigating Challenges Related to School District Records

By Terence Morrow, MSBA Director of Legal and Policy Services

School law attorneys across the country are talking about challenges associated with school district records. Below, three issue areas are discussed briefly: public records requests, school board member access, and records retention requirements.

Public Records Requests

Like their counterparts in other states, Minnesota school districts are increasingly receiving records requests from data miners who appear to be seeking employee contact information for the purpose of sales solicitation and other commercial purposes.

MSBA Model Policy 406—Public and Private Personnel Data incorporates the Minnesota Government Data Privacy Act (MGDPA), which governs access to employee information. Several types of employee data exist, including: public, private, confidential, personnel, and protected health information. Public personnel data includes an employee’s name, compensation and benefits, work contact information, and more. The data miners’ requests for public personnel data must receive a response. For data requests and access, Minnesota school districts are required to identify an employee as the Responsible Authority responsible for personnel data. For most school districts, the superintendent serves as the Responsible Authority.

School Board Member Access

Generally, student information is private and may not be disclosed to third persons without parental consent. Federal and state data privacy laws limit the degree to which a school board member may access or review a school district record, including pupil information. MSBA Model Policy 515—Protection and Privacy of Pupil Records reflects legal requirements found in the federal Family Educational Rights and Privacy Act (FERPA) and the MGDPA. Federal and state law set forth exceptions to parental consent that allow others to access education data in narrowly specified circumstances.

Model Policy 515 describes directory information available to the public and to records requesters. Minnesota school boards are responsible for identifying the types of

information (if any) that will be directory information and, if desired, the board may limit disclosure to specific parties or for specific purposes.

Each student has an education record that the school district maintains. Access to a student’s education record is limited to persons who have a legitimate educational interest. Typically, those with a legitimate educational interest are teachers, staff, and administrators. The Responsible Authority usually decides when questions arise regarding a legitimate educational interest.

Records Retention

Under Minnesota’s records retention law, school districts and other public entities must retain government records for a prescribed period. Minnesota Statutes 138.17 defines “government records” as “all cards, correspondence, discs, maps, memoranda, microfilms, papers, photographs, recordings, reports, tapes, writings, optical disks, and other data, information, or documentary material, regardless of physical form or characteristics, storage media or conditions of use” made or received by a school district official or employee.”

Two points immediately jump out. First, the breadth of “government records” is very broad. Second, it is the content of the record that is key. The form (paper, email, text, etc.) is not a factor in determining when and how long a specific government record must be retained.

Every Minnesota school district must comply with a records retention schedule that establishes rules regarding types of records, the duration for which they must be retained, and disposal requirements. The Minnesota Historical Society (MHS) provides detailed information on school district records retention schedules. Please visit https://www.mnhs. org/preserve/records/retentionsched.php for information. Districts may choose to follow the MHS sample schedule or submit their own schedule for state review and approval.

Terence Morrow is MSBA’s Director of Policy and Legal Services. You may contact him about this column at tmorrow@mnmsba.org.

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