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Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies

2.B. Privacy Protection Under FERPA: Responsibilities of Agencies and Schools

The U.S. Congress passed FERPA in 1974 to protect student and family privacy. Also known as the Buckley Amendment, FERPA grants parents certain rights of access to their children’s education records and restricts disclosure of information from those records without their consent. It also allows parents and eligible students to amend records they believe to be inaccurate or misleading. The original FERPA statute and its amendments are incorporated in the U.S. Code (20 USC 1232g). The Code of Federal Regulations (34 CFR Part 99) contains regulations for administering the law.

In 1994, FERPA was amended in the Improving America’s Schools Act. The U.S. Department of Education published revised regulations in the Federal Register on November 21, 1996 (pp. 59291–59298) to ensure greater flexibility in implementing the privacy laws pertaining to student records.

The law regards as an education record most information that teachers, school administrators, and education officials maintain about students in a tangible format, whether in electronic, photographic, or paper files. Regardless of where the information about students originates, if it is maintained by schools or education agencies, protecting its privacy is governed by FERPA or another federal statute, such as NSLA. School districts, schools, or state education agencies, if asked, must comply with parents’ or eligible students’ requests for access and review.

FERPA requires school districts—but not state education agencies—to notify parents and eligible students annually of their rights under FERPA. Among the changes in FERPA that resulted from the 1996 regulations was the removal of requirements for districts to adopt written policies pertaining to FERPA. Although local written policies are no longer required, regulations continue to encourage districts to develop privacy policies and procedures. Because state or local privacy protection laws or policies may supplement or refine FERPA, many state and local education agencies establish written policies to ensure the law will be applied uniformly.

FERPA currently permits schools to transfer any and all education records, including disciplinary records, for a student who is transferring to another school. A new provision of the NCLB Act requires state education agencies that receive funds under the Elementary and Secondary Education Act (ESEA) to provide an assurance to the U.S. Secretary of Education. The assurance stipulates that the state has a procedure in place to facilitate the transfer of disciplinary records, with respect to a suspension or expulsion, by local education agencies to any private or public school for any student who is enrolled or seeks to enroll in the school.

FERPA defines protected education records

FERPA defines education records as information:

  • directly related to a student, specifically any information recorded in any way, including but not limited to handwriting, print, computer media, videotape or audiotape, film, microfilm, and microfiche; and
  • maintained by an education agency or institution, or by parties acting for the agency or institution (e.g., special education schools and health or social services institutions).

Records pertaining to special education students are subject to the same FERPA requirements as all other student records.

Education records include but are not limited to:

  • family information, such as name and address of the student and parent or guardian, emergency contact information, date and place of birth, and number of siblings;
  • personal information, such as an identification code, social security number, picture, and list of personal characteristics that would make it easy to identify a student;
  • grades, test scores, courses taken, academic specializations and activities, and official letters about a student’s status in school;
  • test records, answer sheets (including written responses to performance assessments and portfolios), and records of individualized education programs;
  • special education records;
  • disciplinary records established and maintained by school officials;
  • medical and health records that the school collects and maintains. Individually identifiable health information of students under the age of 18 created by a nurse in a primary or secondary school that receives federal funds and that is subject to FERPA is an education record, not protected health information. Privacy regulations generally applied to health records do not apply;
  • documentation of schools attended, courses taken, attendance, awards conferred, and degrees earned; and
  • videotapes of individuals or groups of students.

A school district may establish policies that list the types and locations of education records, with a schedule of fees (which must be reasonable) that are charged for duplicating records. Agencies may not, however, charge a fee to search or retrieve education records. The following information about students is not considered part of an education record and is not subject to access or disclosure rules under FERPA:

  • notes (handwritten or typed) kept in the sole possession of the maker (teachers, supervisors, school counselors, and administrators) which are used only as a personal memory aid and are not revealed to any other person other than a temporary substitute teachers or other replacement personnel;
  • records created by law enforcement units of schools or school districts, for a law enforcement purpose, that are maintained separately from education records; and
  • information about individuals obtained after they are no longer students.

Another type of information is not subject to “consent” rules under FERPA. FERPA allows school systems to establish a policy that designates some types of information as directory information—the portion of the education record that would not generally be considered harmful or an invasion of privacy if disclosed. Local education agency definitions of directory information may vary, but they generally include a student’s name and school activities, family members’ names, address, and telephone number. Some school districts also include as directory information the biographical materials found in school yearbooks, such as videotapes and pictures of students; participation in various extracurricular activities; degrees and awards received; and names of previous schools attended. The height and weight of athletes may also be included as directory information. Once notice of directory information is given, school officials can distribute the information to anyone who requests it inside or outside the school.

If a school district has a policy for disclosing directory information, it must give public notice of what is considered in this category and indicate that parents may refuse to allow the agency to designate any or all of their child’s record as directory information. The law requires the notification to specify the period of time in which parents must inform the school or district of any directory information whose release they disallow. Such notification can occur through a school newsletter, student handbook, or some other publication that parents can be expected to receive.

FERPA currently allows schools to designate and disclose without consent certain items of information as directory information. The FERPA regulations define “directory information” under § 99.3 of the regulations and set forth the requirements for implementing a directory information policy under § 99.37 of FERPA. Generally, directory information may be disclosed by a school to any party, provided the requirements of FERPA are followed.

The NCLB Act also addresses the disclosure of directory-type information (students’ names, addresses, and telephone listings) to military recruiters. Congress also included similar language in the National Defense Authorization Act for Fiscal Year 2002. Both laws, with some exceptions, require schools to provide directory-type information to military recruiters who request it. Typically, recruiters are requesting information on junior and senior high school students that will be used for recruiting purposes and college scholarships offered by the military. Upon such request, school districts are required to provide student names, addresses, and telephone listings to military recruiters unless a parent has elected to “opt out” of the public, nonconsensual disclosure of directory information or has opted out of a specific notice provided by the school regarding disclosure to the military. The laws do not permit school districts to institute a policy of not providing the required information unless a parent has affirmatively agreed to provide the information.

The NCLB Act makes it clear that, even if a local education agency does not have a policy of disclosing “directory information” under FERPA, the school district must still comply with a request from a military recruiter for names, addresses, and telephone listings of students. The referenced laws require an “opt-out” notification process.

Exhibit 2–3 includes a questions and answers sheet provided by the Family Policy Compliance Office (FPCO) to clarify the new provisions of access to high school students and information on students by military recruiters.

Each of the local, state, and federal education agencies has a role in protecting the privacy of education records

FERPA regulations require education agencies and institutions to give annual notification to parents and eligible students of their rights to review education records and to request corrections of records they perceive to be inaccurate. Exhibit 2–4 presents a model privacy notification. These regulations apply to the education records maintained in any school, education agency, or institution representing an education agency. FERPA applies to all educational institutions, defined as agencies that provide:

  • educational services or instruction, or both, to students; or
  • administrative control or services to public elementary or secondary schools or postsecondary institutions.

The U.S. Department of Education does not require local education agencies to notify parents or eligible students individually of their rights, but agencies must provide notice where it is likely to be seen. FERPA regulations regarding records access apply to state and local agencies, but only local agencies must give annual notification of rights under FERPA. The annual notification must inform parents that they have the right to:

  • inspect and review their child’s record;
  • seek to amend the record if they believe the record to be inaccurate, misleading, or otherwise in violation of their child’s rights;
  • consent to disclosures of personally identifiable information in the record, with certain exceptions authorized by FERPA; and
  • file a complaint with the U.S. Department of Education concerning the district’s failures to comply with the requirements of FERPA.

Parents’ access to records is limited to information about their own child. In cases where an education record contains information about more than one child, the information must be separated so that parents do not have access to the records of any child other than their own.

FERPA requires local agencies to provide their annual notification in a manner that “effectively informs” those who have a disability or who speak a primary or home language other than English. Methods for notifying parents may include either providing notice in alternative formats such as audiotape, Braille, computer diskette, or large print, or translating information into the native language of requesting parents.

Under the provisions of NCLB, the U.S. Department of Education is required to notify annually each state education agency and local education agency of their obligations under FERPA and PPRA. The web site of FPCO (www.ed.gov/policy/gen/guid/fpco) contains the annual notices to Chief State School Officers as well as district superintendents.

Parents and eligible students may inspect and review education records

FERPA also grants records inspection and review rights to eligible students who are over age 18 or who have graduated from high school and are attending a postsecondary education institution at any age. A student under 18 who is still in high school but is also taking college courses has access to records held by the college, but access rights to records held by the high school still belong to the parents. Parents who claim students as dependents for income tax purposes may be given access to school records, even if the rights under FERPA have transferred to the student.

Parents and eligible students may request an explanation or interpretation of their education records, whether these records are held by schools, agencies, or representatives of educational institutions. The agency must respond to requests to review education records within 45 days of the inquiry. If parents or eligible students believe a record is inaccurate or misleading, they may petition for the record to be amended or changed. The education agency must decide within a reasonable period of time if the request to change the record is consistent with the agency’s own assessment of the record’s accuracy. The agency cannot destroy records if there is an outstanding request to inspect or review them.

If a request to amend records is denied, the applicant can subsequently appeal the decision in a hearing conducted by the education agency. After the hearing, a parent or eligible student who continues to disagree with the contents of a record can insert an explanation of the objection into the official record, and that explanation must remain with the record as long as it is held by the agency. However, the amendment is limited to items other than school grades, assessments, placements, and “substantive” decisions.

FERPA gives either a parent or legal guardian equal rights to review an education record unless there is evidence of a court order or law revoking these rights. A “parent” refers to a natural or adoptive parent, including a noncustodial or foster parent, a legal guardian, or an individual acting in the parent’s absence. The law grants parental rights to foster parents acting on behalf of the child. Agencies or schools can require parents to verify their relationship with a child before providing access to records. Further specification of eligibility requirements is not stipulated in the federal law, but can be detailed in state laws or local policies.

FERPA restricts release of information without prior consent

Without consent of the parent or eligible student, education records can be disclosed to school officials designated as having a “legitimate educational interest.” The law leaves to the district the authority to define the criteria for determining the legitimacy of an educational interest, which generally includes situations where officials need to review education records to fulfill their professional responsibilities. This includes access to records by teachers, counselors, and administrators who routinely work with students. The following lists some example situations in which legitimate educational interest prevails:

  • to perform education- or discipline-related tasks in connection with a student;
  • to provide services to a student or a student’s family, such as emergency health care, counseling, or school or job placement; or
  • to perform administrative or other educational responsibilities prescribed by the agency or school.

If an educational agency or institution has a policy of disclosing education records to officials considered to have a legitimate educational interest, it must include in the annual notification of FERPA rights the criteria for determining who constitutes a “school official” and the criteria for what constitutes a “legitimate educational interest.” Depending on the policy defined locally, school officials might include any or all of the following:

  • a school administrator, supervisor, instructor, or support staff (including health or medical staff or law enforcement unit personnel);
  • a school board member with an authorized reason to review a record;
  • a person or company with whom the district has contracted to perform a special task (e.g., an attorney, auditor, medical consultant, or therapist); or
  • a parent or student serving on an official committee, such as a disciplinary or grievance committee, or assisting another school official in performing required tasks.

Because these officials, acting on behalf of students, have a need to know, they can usually access information without seeking consent.

Under FERPA, disclosure of information to an individual or agency outside the school, school district, or state education agency—a third party—generally is not allowed without prior consent of a parent. Under certain circumstances (e.g., government-required audits, evaluations, or court orders), a district can release records without approval of the parent, but it must record the disclosure, explaining the legitimate interest the party had in receiving the information. FERPA permits that records may be disclosed without consent of the parent to the following individuals and organizations:

  • officials in another school, school system, or postsecondary education institution where the student intends to enroll. Such releases must be reported to the parent or eligible student unless the release either is initiated by one of them or is specified by local policy;
  • the U.S. Secretary of Education, authorized representatives of the Comptroller General of the United States, and state and designated local education authorities for audit and evaluation of educational programs;
  • institutions to which students apply to receive financial aid to determine eligibility, amount of aid, conditions of aid award, and enforcement of award terms and conditions;
  • accrediting organizations to carry out their functions;
  • organizations authorized by education agencies or institutions to conduct studies that concern the development or administration of tests, the administration of student aid programs, or the improvement of instruction; and
  • appropriate parties in a health or safety emergency.

When a record is disclosed in the types of situations indicated above, the originating agency must note in the record the names of the parties who received the information and an explanation of the legitimate educational interest under which the record was disclosed. FERPA requires agencies or schools to account for all instances of education records release, indicating the reasons the information was provided and who received it. These explanations must be recorded in the student’s record and maintained there until the agency destroys the record.

Records matching and redisclosure to third parties

FERPA generally prohibits matches of computerized education records held by local or state education agencies with data from other agencies. These prohibitions apply broadly to data sharing about special education programs, evaluating or monitoring the use of federal funds, or coordinating interagency social service assistance to students and families.

Beginning in 1994, the U.S. Congress established penalties for inappropriate release of personally identifiable information from education records by a third party when conducting studies (Improving America’s Schools Act). An agency or institution cannot allow that third party access to personally identifiable information from education records for at least 5 years after the incident.

However, cross-agency cooperative use of information from education records is an area of developing law and interpretation that experts are continually reexamining. State and local government agencies, along with schools, are seeking means to reduce fragmentation and duplication across service systems. Occasionally, interagency partnerships can be formed to exchange information about individual students in a manner that provides useful information but retains the anonymity of an individual student. Those who have experimented with such interagency partnerships are overcoming legal obstacles to collaboration without threatening the confidentiality of students who receive services. This topic is addressed in greater detail in section 6.

Implications of other FERPA regulations

In addition to reducing the requirements for local education agencies to have written FERPA policies, the 1996 regulations implementing the 1994 Improving America’s Schools Act (IASA) clarified several other components of FERPA. The regulations:

  • remove certain requirements about the annual notification of privacy rights, simplifying and making it easier to understand the central requirements of FERPA;
  • establish a standard for giving annual notification to parents and eligible students that strikes a balance between placing a minimal requirement on education agencies and institutions and ensuring that parents and eligible students are effectively informed of their rights under FERPA;
  • maintain the previously established 45-day period for responding to requests to inspect records;
  • require state education agencies to comply with the access provisions of FERPA, but not with the notification provisions;
  • clarify that nothing in FERPA prevents schools from maintaining and disclosing to school officials specific information regarding disciplinary actions taken against students for conduct that poses a risk to the safety of the student, other students, or other members of the school community; and
  • allow officials to withhold information about a court order and/or disclosure from parents if a court order or subpoena related to law enforcement specifically states that its existence should not be revealed to a parent or student.

Since 1998, the U.S. Congress has enacted two additional exceptions to the statutory prior consent rule. The 2000 Campus Sex Crimes Prevention Act added a new subsection (b)(7) to the statute to ensure that an educational institution may disclose information concerning registered sex offenders provided to it under state sex offender registration and community notification programs. The Patriot Act of 2001 added a new section (j) that allows the U.S. Attorney General or his or her deputy to apply for an ex parte court order requiring an education agency or institution to allow the Attorney General (or his designee) to collect and use education records relevant to investigations and prosecutions of specified crimes or acts of terrorism subject to confidentiality procedures developed in consultation with the Secretary of Education. (See section A in this section).

These laws should be closely reviewed by privacy experts within school districts and state education agencies for their specific applicability to individual cases.

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