“Confidentiality and Access to Student Records Family Educational Rights And Privacy Act (“FERPA”)”
One of the frustrations that our clients often express to us is their inability to obtain information from their public school district. Sometimes it is a matter of the school district refusing to provide requested information, and other times parents experience extraordinary delay in obtaining information. Therefore, it is important for parents to know their rights in this area.
FERPA is a federal law that protects the privacy of student education records. It provides parents of minor students, or “eligible students” (students over 18) with certain rights regarding student records. It applies to virtually all public and private school and post-secondary institutions who receive education funding from the Department of Education.
FERPA gives parents/eligible students the right to inspect and review the student’s “education records” maintained by the school. Schools must comply with requests to inspect and review records within forty-five (45) days of receipt of the request. “Education records” are those records, files, documents, and other materials, which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution. Education records do not include: records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a temporary substitute for the maker of the record; records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement; in the case of persons who are employed by an educational agency or institution but who are not in attendance at such agency or institution, records made and maintained in the normal course of business which relate exclusively to such person in that person’s capacity as an employee and are not available for use for any other purpose; records on a student who is eighteen years of age or older, or is attending an institution of post-secondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student’s choice; records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual’s attendance as a student; and grades on peer-graded papers before they are collected and recorded by a teacher.
Schools are not required to provide copies of education records to parents or eligible students unless it is impossible for parents or eligible students to review the records. For example, if parents are disabled or live too far away and cannot travel to the school to inspect records, they may be entitled to copies. Schools may charge a fee for copying records unless to do so would effectively prevent the parent from being able to exercise the right to inspect records. Schools may not charge a fee for searching for and retrieving records. The right to “inspect and review” records includes the right to make reasonable requests for explanations and interpretations of the records.
Generally, schools must have prior written permission from the parent or eligible student in order to disclose “personally identifiable information” from a student’s education record. Personally identifiable information includes, but is not limited to: (a) the student’s name; (b) the name of the student’s parent or other family members; (c) the address of the student or student’s family; (d) a personal identifier, such as the student’s social security number, student number, or biometric record; (e) other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name; (f) other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.
However, no prior consent is required before disclosure of “directory information,” which is information contained in a student’s education records which would not generally be considered harmful or an invasion of privacy if disclosed. Directory information includes: the student’s name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors and awards received; and the most recent educational agency or institution attended. Directory information does not include: student’s Social security number or student ID number, except that a student ID number may be shared without consent if they qualify as “electronic identifiers” meaning ID is required for electronic access and disclosure cannot lead to disclosure of education records.
Prior consent is also not required before disclosing records or personally identifiable information from student records as follows: 1. to school officials with legitimate educational interest, including contractors, consultants or volunteers under the direct control of the district with respect to the use and maintenance of records and who perform institutional function normally performed by employees; 2. to other schools to which a student is transferring; 3. to specified officials for audit or evaluation purposes; 4. to appropriate parties in connection with financial aid to a student; 5. to organizations conducting certain studies for or on behalf of the school; 6. to accrediting organizations; 7. to comply with a judicial order or lawfully issued subpoena; 8. to appropriate officials in cases of health and safety emergencies; 9. to state and local authorities, within a juvenile justice system, pursuant to specific State law; 10. if the information concerns a registered sex offender; and 11. de-identified information.
Parents who believe that their rights have been violated may file a FERPA complaint with the Family Policy Compliance Office of the United States Department of Education within180 days of the date they learn of the alleged violation. This Office is authorized to issue sanctions such as cease-and-desist orders and termination of funding for schools which fail to comply with FERPA.
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