Proposed Minnesota Data Practices Legislation: What Educators Need To Know


Hello, Fellow Minnesotan Education Thought Leaders,
Tomorrow I will be testifying to the Legislative Commission on Data Practices regarding proposed bills that could potentially impact school districts on various issues related to the expansion of personnel data and records retention. You need to know that if this legislation were to pass, it could place undue burdens on school districts that are not feasible from both a financial and operational perspective.

The first area of concern is a bill for an act relating to data practices, which recommends adding video and audio recordings to a list of personnel data classified as public, amending Minnesota Statutes 2016, section 13.43, subdivision 2. You can review the language here: “HF 1316 (Lesch): Video and audio recordings added to list of personnel data classified as public. This amendment would cause me to question whether we are charged with educating students or storing and producing public data on employees.”

The proposed language is unclear, and regardless of the intent, the proposed language is very broad and production of the data would be overly burdensome. The time and expense involved in responding to a request for public personnel data would be considerable because of the sheer volume of data, the difficulty involved with separating private data from public data, and the lack of an automated process for video footage review and redaction. If passed, this could have a chilling effect on schools using video cameras in buildings or school buses, even when the cameras are necessary for security/deterrence reasons.

In addition, this could be very expensive because, instead of taping over video footage as we currently do (it’s not uncommon for security tapes to re-loop every week or every month) we would have to store all video footage somewhere, with a cataloging system that identified every employee who appeared on the footage so it could be searched. Do we have to maintain video footage forever? It’s not clear. We would have to hire additional staff in order to comply with the law as amended.

Below is a summary of concerns and questions that need to be addressed:

    1. Sheer volume. Surveillance cameras in school buildings and on school buses may run continuously. Numerous voicemails are generated by each employee every day.
    2. Difficult/impossible to separate private data from public data. Video images of students or other private data would probably be intertwined with images of school employees, and phone messages can include private and public data. Some school building or bus camera footage may be maintained on external servers and the school district may lack a way to redact footage or messages.
    3. Manual review and redaction. School districts do not have an automated process for review or redaction. Video and audio recordings would have to be reviewed and redacted manually which is an extremely time-consuming process.
    4. There is no “silver bullet” technological solution to eliminate the need for manual intervention to make determinations on what is and isn’t public data.
    5. When requests for data or litigation occur, it could take a team of experts to redact information. Corporations retain law firms to assist with cases that can require a team of legal experts just for purposes of redaction. Districts do not have these kinds of resources.
    6. My big wondering is, does this proposed legislation ask more of districts than the law requires of organizations in the private sector? It seems to me that it does. Corporations struggle with records retention just like we do. With the ubiquitous nature of smartphones and other internet-connected devices, it is easier than ever to generate data. In the end, the legislation that would pay the greatest dividends would be related to districts having clear policies and procedures accompanied by consistent and persistent employee training. We need to focus on what’s feasible for districts to implement with the resources we have.

The second area of concern is the redefinition of correspondence as defined in government retention law, which can be referred to here: “Overview of HF 1185 (Scott)/SF 1719 (Limmer): Correspondence defined in government record retention law, and minimum three-year retention period for correspondence provided. A bill for an act relating to data practices; defining correspondence in government record retention law; providing minimum three-year retention period for correspondence; amending Minnesota Statutes 2016, sections 15.17, subdivisions 1, 2; 138.17, subdivisions 1, 7.”

If the term “records” no longer excludes data and information that does not become part of an official transaction, a school district may be required to retain all draft information regardless of historical value. A requirement to retain all draft information would dramatically increase the burden on government entities for retention as well as production.

It is unclear whether this requires government entities to retain draft data on individuals, such as draft IEPs. Presently, draft IEPs are not retained because the MGDPA (Minnesota Government Data Practices Act) defines student records as records that are “maintained” by a school district. See Minn. Stat. § 13.32. Likewise, draft school personnel evaluations are not “maintained” by a school district. See Minn. Stat. § 13.43. If this proposal requires the maintenance of draft data on individuals, it would be a significant change to the definition of individual data, and clarification in the MGDPA would be needed.

Additionally, this could be interpreted to mean that districts also need to archive all social media content as well, which there is no real solution that provides this. Again, this would impose requirements on districts that aren’t feasible to meet at this time.

As stated in Minn. Stat. § 138.17, government entities may develop their own record retention schedules, but many school districts have adopted the general school district record retention schedule. The general school district record retention schedule has a minimum retention period of three years for administrative correspondence. The retention period for other types of correspondence varies. For example, litigation correspondence is ten years, and contractor correspondence is three years after completion of the contract.

In this proposed legislation, the definition of the term “correspondence” is too broad. (Classification of “correspondence” data is in the MGDPA. See Minn. Stat. § 13.601, Subd. 2.) It is unclear why correspondence is singled out for a minimum retention period, and it creates many uncertainties and questions that will create numerous challenges for districts, and in the end, distracting us from our primary goal of educating our students.

I implore you to voice your concerns to legislators, lobbyists, and any other connections you may have regarding this legislation. Surely there are sound reasons for the intentions behind this proposed legislation, but the unintentional consequences seem to outweigh the benefit.

Author: chadmaxa

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