Due Process Rights, Data Privacy and Other Student Rights
The Minnesota Department of Education (MDE) developed this document to assist school districts who have raised questions about record retention. The purpose of this document is to provide helpful, general information to the public. It does not constitute legal advice nor is it a substitute for consulting with a licensed attorney. The information below should not be relied upon as a comprehensive or definitive response to your specific legal situation.
Question 1: What is record retention?
Answer: Government entities, such as public school districts, are required to maintain records under state law. Minnesota Statutes, section 15.17. The maintenance of records is a legal requirement and is important for documenting the activities on which state and federal tax money was expended. Records also make policies transparent and preserve the history and knowledge of government entities.
Authority: Minn. Stat. §§ 15.17, 138.17, 138.63.
Question 2: What is a record retention schedule?
Answer: A record retention schedule protects both the district's interests and the public's rights by providing guidance to the district about the management of records. A retention schedule tells the district how long to keep certain records and gives the district authority to destroy records when appropriate. It specifies how long records must be kept and includes references to laws that govern the retention period for particular documents. School district personnel should follow their district's record retention schedule regarding the destruction and retention of all records collected, created, received, maintained, or disseminated by a school district.
Authority: Minn. Stat. § 15.17 and Minn. Stat. § 138.17, Subd. 7.
Question 3: Are record retention schedules required by law?
Answer: Yes. Minnesota Statutes, section 138.17, Subdivision 7, require every government entity to have a retention schedule to govern the retention and destruction of all records. Public school districts are government entities; therefore, all public school districts in Minnesota must have a record retention schedule that is approved by the Records Disposition Panel, the state entity that approves the record retention schedules of government entities.
Minnesota law also requires charter schools to comply with Minnesota Statutes, sections 138.17, and 138.163, and maintain and follow a retention schedule for all school records. Minn. Stat. § 124D.10, Subd. 8(p).
Authority: Minn. Stat. §§ 138.17, 138.163 and 124D.10, Subd. 8(p).
Question 4: How do I find out if my district has a record retention schedule?
Answer: District personnel should consult with the individual in their district who handles data practices-related matters to determine whether a record retention schedule exists. This person may be your district’s legal counsel or data practices professional. Your district may already have a record retention schedule that you should follow to maintain and destroy your records. See the answer to Question 5 for information about resources for creating a record retention schedule for your district.
Question 5: What if my district does not have a record retention schedule?
Answer: If your district does not have a record retention schedule, one should be created. State law requires all public school districts, including charter schools, to have a record retention schedule. Minnesota Statutes, section 138.17, Subdivision 7. If your district does not have an approved record retention schedule, no records can be destroyed or discarded before one is completed.
A sample approved record retention for school districts to use as a guide entitled General Record Retention Schedule for Minnesota School Districts is available on the Minnesota State Archives web page. This approved schedule has not been updated since 2000; thus, any references to state or federal statutes must be checked for accuracy. Districts can choose to create a schedule or adopt and modify the approved schedule to reflect their district’s specific records. MDE recommends carefully reviewing the model policy to ensure that it reflects all of your district’s records. Districts may also choose to consult with their legal counsel or data practices professional for guidance when compiling their retention schedule.
The Minnesota State Archives Department of the Minnesota Historical Society maintains a list of school districts that have adopted the General Record Retention Schedule for Minnesota School Districts, as well as a set of approved records retention schedules submitted by Minnesota school districts that can be used as a guide when creating a schedule for your district. For further assistance, contact the Minnesota State Archives at 651-259-3260 or firstname.lastname@example.org.
Districts can also consult with other similarly sized districts or districts located in their geographic area to discuss what records other districts retain and applicable retention time periods. The retention schedules of other districts can provide very helpful points of comparison for creating or modifying your district’s retention schedule. A district’s record retention schedule is a flexible document and can always (and should) be updated when changes are needed.
Authority: Minn. Stat. § 138.17, Subd. 7.
Question 6: How do I get my record retention schedule approved?
Record retention schedules must be reviewed and approved by the Records Disposition Panel. School districts may choose to either adopt the General Record Retention Schedule for Minnesota School Districts in full or in part, or draft their own record retention schedule. Regardless of how a school district creates its record retention schedule, all districts should follow the instructions attached to the General Record Retention Schedule for Minnesota School Districts available on the Minnesota State Archives web page to obtain approval for their retention schedule. Obtaining approval for their retention schedule gives a district continual authority to appropriately dispose of records according to that schedule.
Authority: Minn. Stat. § 138.17, Subd. 7.
Question 7: How Do I Use a Record Retention Schedule?
Answer: A record retention schedule should be consulted to determine how long a school or district must retain various records that the district collects, creates, receives, maintains, or disseminates. Different types of records are retained for varying lengths of time. A retention schedule provides guidance to school staff about whether a district has a particular set of data when responding to a data request and whether certain records need to be kept when cleaning and organizing. A retention schedule also helps districts comply with record management requirements that may be necessary to receive federal and state financial support such as grants or other monetary allocations.
Authority: Minn. Stat. § 138.17, Subd. 7.
Question 8: Are there any legal guidelines that control the length of time records must be kept?
Answer: Yes. Federal and state laws and guidance documents exist that set out guidelines controlling the length of time records must be kept. Many of the laws and guidelines relevant to maintenance and destruction of school documents are outlined below; however, this list of guidelines is not exhaustive. School districts should become familiar with federal and state record retention guidelines and consult their district’s legal counsel or data practices professional for further assistance in setting the retention periods for records. Districts can also consult the General Record Retention Schedule for Minnesota School Districts, as discussed in Question 6 above, for guidance on how long to keep certain types of records.
Federal laws and guidance documents include the General Education Provisions Act (GEPA); Title 20 of the United States Code, section 1232f; the Education Department General Administrative Regulations (EDGAR); Title 34 of the Code of Federal Regulations, section 80.42; the Individuals with Disabilities Education Act (IDEA); Title 34 of the Code of Federal Regulations, section 300; and the Office of Management and Budget (OMB) Circulars. Generally, records that relate to the use of federal funds must be kept for a minimum of five years; however, certain statutes and a district’s record retention schedule may require records to be kept longer than five years. Districts should consult with their legal counsel or data practices professional for additional guidance about retaining records that relate to the use of federal funds.
The general 5-year retention schedule for records that relate to the use of federal funds comes from a combined reading of GEPA; Title 20 of the United States Code, section 1232f; EDGAR; and Title 34 of the Code of Federal Regulations, section 80.42. GEPA requires that “recipients of federal funds keep records related to the use of those federal funds for three years following the completion of the activity for which the funds are used.” EDGAR states that when "grant support is continued or renewed at annual or other intervals, the retention period for the records of each funding period starts on the day the grantee or subgrantee submits to the awarding agency its single or last expenditure report for that period." Generally, recipients of federal funds have two years to use federal funds, thus the 5-year retention period results from the combination of the GEPA 3-year requirement and the retention period set out in EDGAR.
In addition, several state statutes provide retention timelines that may apply to school district records. The following state statutes set out retention time periods that districts should consider when managing their records:
Minnesota Statutes, section 123B.06, requires student cumulative records to be kept permanently. It is important to keep in mind that this statute applies only to cumulative records, not all of a district’s records about students. View MDE’s Q&A: Cumulative Records for more information.
123B.06 EVALUATION OF PUPIL GROWTH AND PROGRESS; PERMANENT RECORDS.
Each school district shall provide a testing program for the purpose of measuring pupil growth and for curriculum evaluation, as well as a system for grading and making reports to parents. Each district shall develop an appropriate program of pupil progress and promotion for its elementary, middle, and secondary schools. Each district shall keep accurate and complete individual, permanent, cumulative personal records for all pupils.
Minnesota Statutes, section 127A.41, Subdivision 5, relates to student attendance audits of Minnesota Automated Reporting Student System (MARSS)-related records. This statute requires that schools and districts keep any documentation that supports data reported in MARSS for at least three years after the close of the school year. Some of these data may be part of the cumulative record; for example, a student’s transcript, homebound requirement, entry/withdrawal dates, etc.
127A.41 DISTRIBUTION OF SCHOOL AIDS; APPROPRIATION.
Subd. 5. District appeal of aid reduction; inspection of district schools and accounts and records. Public schools shall at all times be open to the inspection of the commissioner. The accounts and records of any district must be open to inspection by the state auditor, or the commissioner for the purpose of audits conducted under this section. Each district shall keep for a minimum of three years at least the following: (1) identification of the annual session days held, together with a record of the length of each session day, (2) a record of each pupil's daily attendance, with entrance and withdrawal dates, and (3) identification of the to-and-from school transportation category for each pupil as defined in section 123B.92, subdivision 1.
Lastly, the General Record Retention Schedule for Minnesota School Districts indicates that records related to accounts payable and permanent end of year financial reports should be retained for six years. Districts should carefully consider these recommendations and consult with their legal counsel or data practices professional with additional questions about record retention time periods. MDE recommends districts be consistent in the retention periods they choose and consult their district’s legal counsel or data practices staff person for further guidance.
Authority: 34 C.F.R. §§ 80.42 and 300; 20 U.S.C. § 1232f; and Minn. Stat. §§ 123B.06 and 127A.41, Subd. 5.
Question 9: Are there specific guidelines about the retention of special education records?
Answer: Yes. In addition to the general 5-year minimum time frame recommended for education records that relate to programs supported by federal funds, additional federal guidance exists about the retention of special education records. If records involve special education, the federal regulations provide that “the district must inform parents when personally identifiable information collected, maintained or used…is no longer needed to provide educational services to the child.” In addition, information must be destroyed at the request of the parents when it is no longer needed to provide services to the child. 34 C.F.R. § 300.624(a). Finally, the federal regulations provide that a “permanent record of a student’s name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation,” even if the district destroys other special education records at the parents’ request. 34 C.F.R. § 300.624(b). View MDE’s Q&A: Protecting the Privacy of Student Educational Records and Personally Identifiable Information for additional information about special education record retention.
Authority: 34 C.F.R. § 80.42; 34 C.F.R. § 300.624(a) and (b); and 20 U.S.C. § 1232f.
Question 10: Our district is trying to save space and be “green” in our records management. Can districts retain records in an electronic format?
Answer: Yes. Records can be maintained in any format, including an electronic format, as long as records are maintained in an accessible manner and can be retrieved if needed by staff or if a data request is made. For digital records, districts may choose to keep backups of digital databases or paper document copies of certain records. Districts should be consistent in the approach they take to retaining data and, this approach should be documented in the district’s policy and procedures. It is not necessary to seek additional approval for a school district’s record retention schedule if the format of a record changes as long as the district has a consistent method of documenting and keeping track of records that change format.
The Information Policy Analysis Division (IPAD) provides some helpful materials regarding record retention and electronic records. Districts may also find the training materials provided by IPAD beneficial to use as a training tool with staff.
Question 11: Our district has changed the records we keep and the format in which we keep our records. What should we do?
Answer: Records will change over time as programs and technology change. The format in which records are kept will also change over time. Retention schedules are flexible documents. If new records or information is being created and maintained by the district, these changes should be documented in the district’s record retention schedule and the updated retention schedule should be submitted to the Minnesota State Archives for approval. If a district changes only the format in which a record is kept; for example, moving from retaining paper records to digital records, this change should also be documented in the district’s record retention schedule. However, the district does not need to submit the updated retention schedule for approval by the Records Disposition Panel. Documentation of these changes in the district’s retention schedule retention are important because they keep district staff informed about the records a district must maintain and the specific formats particular records are kept. For further information, view Electronic Records Management Guidelines on the Minnesota State Archives web page.
Question 12: How long must districts keep student records? How long must districts keep records for students who graduate, transfer, or pass away? How long must districts keep cumulative records?
Answer: Districts must keep any and all records according to their record retention schedule, including any records that relate to a student. Minn. Stat. § 138.17, Subd. 7. For more information on retention schedules, please refer to the previous questions in this Q & A.
Authority: Minn. Stat. § 138.17, Subd. 7
Question 13: How do we use our record retention schedule when we receive a data request from an individual or entity, such as parent or another district?
Answer: A record retention schedule helps a district respond to a data request because a district can quickly determine if they still have the data being requested. For example, a request is received for a student’s special education record that is ten years old and the district’s record retention schedule states that special education records are kept for seven years. If the district has appropriately destroyed the student’s special education records after the 7-year timeframe has ended, the district knows that it no longer possesses the records being requested. The district can respond to the data request efficiently and appropriately after relying on its record retention schedule. A record retention schedule can also assist a district in responding to a data request by informing the district that particular records are still being maintained in the district.
Question 14: Do I have to document destruction of records?
Answer: Yes. Minnesota government entities are required by state law to maintain a list of records destroyed. Documenting the disposal of records according to an established records retention schedule demonstrates compliance with the law. Disposing of records that are no longer needed is also a best practice. View the Records Destruction Report form available on the Minnesota State Archives Records Services web page (under Forms).
Authority: Minn. Stat. § 138, Subd. 7.
Question 15: I still have more questions about record retention and data practices. Whom can I contact for assistance?
Answer: If you have additional questions about data practices and record retention, you can contact the MDE Division of Government Relations at 651-582-8583. For additional data practices questions, see the General Record Retention Schedule for Minnesota School Districts. You can also contact the Information Policy Analysis Division (IPAD) of the Department of Administration at 651-296-6733 or 1-800-657-3721. For questions about records with historical value, contact the State Archives Department of the Minnesota Historical Society at 651-259-3260.