On March 28, 2019, the Commissioner of the Minnesota Department of Administration (“Commissioner”) issued a new Advisory Opinion governing the treatment of surveillance footage that depicts multiple students under the Minnesota Government Data Practices Act (“MGDPA”). Advisory Opinion 19-004 advised a school district faced with a request from a parent to view video of their child fighting with another child, where several other students appeared in the background of the video. The school district argued that it was impossible to redact the video to only show the requesting parent’s child and sought to withhold the entire video. This Opinion appears to resolve a nearly two-year conflict between Federal and State authorities about how to handle data requests for video recordings where multiple students are identifiable.
In 2017, the Commissioner issued an Advisory Opinion that school districts were required to make reasonable efforts to redact recordings of students, exclude personally identifiable information about all other students, and provide the redacted recording to the requesting student or parent. That 2017 Opinion went on to say that, in the event that the school district could not easily isolate data about the requesting parent’s student from data about other students, the school district could then “inform” the parent about what the recording contained about their child. But on the same day as the Commissioner issued that 2017 Opinion, the Office of the Chief Privacy Officer (“OPCO”) of the U.S. Department of Education issued guidance related to the Family Educational Rights and Privacy Act (“FERPA”) that also directed school districts to separate student data in video recordings by redacting the footage so that a parent making a request would only receive data on their student. However, the OPCO’s guidance provided that, if the school district could not make the redactions without destroying the meaning of the video, then the school district was required to provide the parents the opportunity to inspect and review the video. In essence, where the video on the requesting parent’s child could not be isolated, Minnesota guidance permitted the district to summarize the video’s contents while Federal guidance required the district to show the video to the parent.
In the 2019 Opinion, the Commissioner resolved this issue by adopting the OPCO’s position as the interpretation of the MGDPA. Notably, the Commissioner also determined that the video did not constitute an education record of the students who were in the background, so long as the video was not part of their educational file(s) or linked to them by name. Accordingly, parents of students who are merely in the background of a surveillance video, and not involved in the behavior leading to discipline, do not have a right to review and inspect the unredacted video.
Reiterating language from a previous advisory opinion, the Commissioner also warned that that government entities “must have in place the policies, procedures, and capacities to respond to any data practices requests that might arise subsequent to the creation of records.” “In other words,” she wrote, “if an entity creates an audio recording record, it must ensure it has the capability to redact that recording appropriately, if necessary, in response to a data request.”
Going forward, school districts that receive data requests for surveillance footage still have a duty to make reasonable efforts to isolate data relating to the specific student on whose behalf the footage is requested. In the event that a school district cannot redact the video without destroying its meaning, informing the parents what the video footage shows without giving them access to the video is no longer sufficient. Instead, school districts will be required to let parents see the unredacted video, though they are not required to provide a parent with a copy of the unredacted video.
Providing an appropriate and compliant response to a data request can be complicated and is often dependent on the specific nature of the request and the data being requested. This is particularly true when a request is made for video surveillance footage of students and/or school staff. If you have questions about how to effectively respond to a request for data, contact the attorneys at Ratwik, Roszak & Maloney for guidance tailored to your unique situation.