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FERPA: AN UPDATE ON DISCLOSURE

ISSUES UNDER THE ACT

  1. INTRODUCTION.
  2.  
    1. The federal Family Educational Rights and Privacy Act of 1974 (FERPA), 20 USC 1232g, and the regulations promulgated thereunder, set forth certain requirements promulgated thereunder, set forth certain requirements to afford parents and students privacy rights with respect to the students' education records.
    2.  
    3. The Act applies to any educational agency or institution, public or private, which receives federal funds.
    4.  
    5. In brief, FERPA provides parents and eligible students access to education records directly related to the student, gives them the right to challenge the accuracy of those records, and requires the educational agency or institution to obtain the written consent of the parent or student before releasing information contained in those records to certain third parties.
  3. DISCLOSURE OF INFORMATION UNDER FERPA--GENERALLY.
  4.  
    1. "Directory information" such as the student's name, address, phone number, etc., may be disclosed if the educational institution has given public notice to the parents or eligible student that:
    2.  
      1. Certain categories of information have been designed as directory information.
      1. The parent or eligible student has the right to refuse to permit the designation of any information pertaining to the student as directory information.
    3. Absent prior written consent, an educational institution shall not disclose or provide access to any "personally identifiable information" (i.e., information which would make the student's identity easily traceable) from a student's education records other than "directory information."
    4.  
    5. An educational institution may (but is not required to) disclose personally identifiable information without the prior written consent of the parent or eligible student under certain circumstances. These exceptions are contained in Section 99.31 of the regulations. Most notably, prior consent is not required if disclosure is:

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      1. The other school officials from the same institution and that official has "legitimate educational interest."
      2.  
      3. To comply with a court order or subpoena. However, the educational institution must make reasonable effort to notify the parent or eligible student of the existence of such an order.
      4.  
      5. In connection with a health or safety emergency.
      6.  
  2. FERPA IN APPLICATION--SPECIFIC DISCLOSURE ISSUES.
  3.  
    1. Due Process Hearings.
    2.  
      1. School district's practice of immediately forwarding a copy of student's educational records to hearing officer upon his/her selection without parents' consent likely a FERPA violation. See Letter to Stadler, 24 IDELR 973 (OSEP, 1996), Attachment A.
      2.  
      3. Introduction of a nonconsenual videotape of student behavior at due process hearing not a violation of FERPA. MR by RR v Lincolnwood Bd of Ed, 20 IDELR 1323 (US ND Ill, 1994), Attachment B.
      4.  

NOTE: Videotaping of students in the classroom may raise other FERPA issues.

    1. Outside Service Providers/Physicians.
    2.  
      1. Disclosure of educational records without consent to outside psychologist hired by the school district as an expert witness not a violation of FERPA where psychologist was considered an agent or employee of the district. Letter to Presto, EHLR 213:121 (OSEP, 1988), Attachment C.
      2.  
      3. Release of personally identifiable information without prior consent to professionals under contract with the school district to provide services to the student did not constitute a violation of FERPA. Marshfield Schools (ME), 22 IDELR 198 (1995).
      4. District violated FERPA when it disclosed a student's educational records to the student's physician without parental consent where there was no evidence of a health or safety emergency necessitating the disclosure. See Irvine (CA) Unified Sch Dist, 23 IDELR 1077 (1996), Attachment D.

 

    1. Attorney Situations.
    2. The U.S. Department of Education has opined that it is not a violation of the student's privacy to reveal the contents of educational records, including hearing and review decisions, to an attorney in preparation for litigation regarding the student's special education placement or program. As rationale, DOE cited each party's right to be represented by counsel.
      1.  
      2. But see U.S. Department of Education decision in Edwardsburg Pub Sch, Complaint No. 0439, Attachment E. Here the Department distinguishes between disclosure of educational records to obtain advice (permissible without advance notice or consent) and disclosure of educational records to attorneys in connection with litigation, where redisclosure likely in deposition or at trial (requires advance notice).
      3.  
      4. Disclosure of legal invoices, e.g., pursuant to FOIA request, that personally identify a student constituted a FERPA violation in Letter to Howey, 17 EHLR 701 (OSEP, 1991).
    3. Release in employee discipline/grievance context.
    4.  
      1. Care must taken in how employee concerns are documented. Want to provide notice to employee without violating FERPA confidentiality protections.
      1. Removal of personal identifiers as a way of maintaining FERPA compliance in release of educational records.

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11/25/96