Opinion Number ( 1992 )

Dear Dr. Brannan:

This office is in receipt of your request for an opinion of the Attorney General relative to retention of various types of school records. Your questions are as follows:

1. What type of information has to be retained on a student who has either graduated, expired or permanently left the school system;

2. What type of information has to be retained on personnel and for how long;

3. What state reports should be retained such as outdated Minimum Foundations Reports, Pupil Progression Plans, etc.?

In answering your questions it is important to note that public bodies are required to preserve "public records", and it follows our initial inquiry should be directed at the question if the records about which you inquire are "public records".

In Atty. Gen. Op. No. 89-602 this office observed a parish superintendent is required under R.S. 17:415 to "make and keep such school records as shall be prescribed by the state superintendent of education." It was observed that except for confidential records, all records maintained by the parish superintendent are public records and subject to public inspection. Accordingly, it was concluded that "the parish superintendent must share with the public all information maintained by him or by the parish school board, and not explicitly declared by law to be confidential, since this is a government entity making decisions which affect the public at large."

R.S. 44:36 mandates that all persons having custody or control of any public record shall preserve them for at least three years from the date on which the public record was made unless a formal retention schedule has been executed to provide otherwise.

However, we do not believe the requirement that public records must be maintained for three years would preclude a requirement by the State Board of Elementary and Secondary Education from requiring the record of a student's name, address, grades, attendance record, classes attended and year completed be maintained for a longer period of time or indefinitely.

As you point out, you sought this opinion "in absence of pertinent statutes", and we can only make our conclusions based upon the statutory requirements that public records be retained for three years. However, we recognize that the proper functioning of the school systems would logically require retention of certain student data for a longer period of time. The only statutory reference we find is in R.S. 17:3385 wherein it provides, when a regionally accredited institution of higher education ceases to operate, arrangements for a repository for student's records is required, and the student records are to be preserved "in a manner which insures that the records are continually available to: (i) Each former student for the ordering of transcripts or any other legitimate purpose." To be consistent records for transcripts for all students should be available for a period longer than three years, and we can only presume this would be by rules and regulations of the State Board of Elementary and Secondary Education.

Since we find no statutory law in regard to retention of student information, we would recommend inquiry be made to the Board of Elementary and Secondary Education as to their rules and regulations, if any, in this matter.

With regard to what type of employee information has to retained and how long, we again make reference to retention of public records for three years. In Atty. Gen. Op. No. 90-364 a discussion was given as to what constitutes the public record portion of personnel files. It was observed that only writings which are used in the performance of the functions of the public body should be classified as public record, and, accordingly, personnel documents to be preserved as public records for three years are only those with "information deemed relevant to the functioning of the public body." Based upon R.S. 44:12 it was noted that all medical records, claim forms, life insurance applications, requests for payment of benefits, and all other health records of employees are exempt from the public records law as is unlisted telephone numbers and addresses requested to be confidential.

Therefore unless there are rules and regulations requiring retention of personnel data for a longer time, we must conclude the law only mandates retention of that portion of the data that is public record for three years.

A similar conclusion must be reached in regard to state reports unless they pertain to federal funding. As noted in Atty. Gen. Op. No. 79-387 when the program is partially or fully funded by federal monies it is subject to federal as well as state law on retention of designated records. 20 U.S.C. § 1232f provides:

Each recipient of Federal funds under any applicable program through any grant, subgrant, contract subcontract, loan, or other arrangement * * * shall keep records which fully disclose the amount and disposition by the recipient of those funds, the total cost of the activity for which the funds are used, the share of that cost provided from other sources, and such other records as will facilitate an effective audit. The recipient shall maintain such records for five years after the completion of the activity for which the funds are used. (Emphasis added.)

We hope this sufficiently answers your inquiry, but if we can be of further assistance, please do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

BY: BARBARA B. RUTLEDGE Assistant Attorney General

BBR/2090f