Transcript STUDENT DATA DISCLOSURE AND CONFIDENTIALITY

FAMIS CONFERENCE
Mari M. Presley, Assistant General Counsel
Florida Department of Education
June 12, 2012
Rights Protected by FERPA
Students and/or Parents have right
to ACCESS education records
Personally identifiable education
records and information are
CONFIDENTIAL
ACCESS - Student
 Until a student is “eligible,” only the
parents have the right of access. 20 USC
§ 1232(g)(d) and 34 CFR § 99.5
 An “eligible student” is a student who
has reached 18 or is attending a
postsecondary institution.
ACCESS - Parents
 Even where a student is “eligible,” student records can
be released to parents:
 If student is dependent (for tax purposes) on one parent,
PII can be released to either parent
 If there is an emergency and disclosure is needed to
protect health or safety of student or others
 For postsecondary students, if student has violated law
or policy of institution governing alcohol or controlled
substances, if institution determines student has
committed violation and student is less than 21 at time
of violation
CONFIDENTIALITY
General Rule:
Personally Identifiable Student
records are confidential and
must not be disclosed without
consent
CONFIDENTIALITY
 Is the record an “education record”
 Is the record “personally identifiable”
 Does the requestor have consent?
 Exceptions – disclosure without consent
“Education Records”
 Records that are maintained by an educational
agency and directly relate to a student, except:
 Personal memory aids
 Law enforcement records
 Educational Agency employment records
 Postsecondary health/treatment records of a student over 18
 Peer-graded papers before they are collected and recorded by
a teacher
34 CFR § 99.3
Personally Identifiable Records
 When is student data personally identifiable?
 Contains directly identifying or specifically prohibited
data;
 Contains enough info that a reasonable person in the
school community with no knowledge of the
circumstances could identify the student with
reasonable certainty; or
 Targeted request
DIRECTLY IDENTIFIABLE OR
PROHIBITED ELEMENTS
 Student’s name
 Parents’ names
 Family Members’ names
 Address of Student or Family
 Personal identifiers such as SS#, Student #, or
biometric record
 Date of Birth
 Place of Birth
 Mother’s Maiden Name
ADDITIONAL MASKING REQUIRED
 Even if a record contains no directly identifiable data
and no prohibited elements, it may be personally
identifiable.
 Standard = Whether a reasonable person in the school
community without knowledge of the relevant
circumstances would be able to identify the individual
student with reasonable certainty.
 Masking Protocols should require concealing directly
and indirectly identifiable education information
CONSENT
 In writing
 Signed by Parent (or, if applicable, the
student)
 Dated
 Specify the records to be disclosed
 State purpose of disclosure
 Identify party/class of parties to whom
the record may be disclosed
CONSENT
 34 CFR § 99.31(c), must use “reasonable
methods” to identify and authenticate
the identity of parents, students, school
officials, and other parties to whom
personally identifiable education
records will be released.
 Electronic consent is ok if it identifies
and authenticates a particular person
Exceptions – School Officials
 Disclosure allowed to school officials, including
teachers, within the agency who have “legitimate
educational interests.”
 Outsourced entity permitted under certain
circumstances (contractors, consultants, volunteers)
 Performs function for which agency would otherwise use
employees
 Under direct control of agency
 Subject to limitations on re-disclosure
Exceptions – School Officials
 Agency must use “reasonable methods” to
ensure that school officials obtain access to
only those records in which they have
legitimate educational interest
 An agency that does not use physical or
technological controls must ensure that its
administrative controls are effective
Exceptions – Ed. Officials
 Authorized representatives of:
 Comptroller General of the U.S.
 Attorney General of the U.S.
 USDE Secretary
 State and local educational authorities
DOE
 School Districts/School Personnel
 State Auditor General

Exceptions – Ed. Officials
 “Authorized Representative” = “any entity…designated by a
state or local educational authority …to conduct—with
respect to a Federal- or State-supported education
programs—any audit or evaluation…”
 “Education Program” = “any program that is principally
engaged in the provision of education, including, but not
limited to, early childhood education, elementary and
secondary education, postsecondary education, special
education, job training, career and technical education,
and adult education, and any program that is administered
by an educational agency or institution.
Exceptions – Ed. Officials
To designate an “authorized
representative,” an agency must have a
written agreement that meets the
requirements of 34 CFR § 99.35
EXCEPTIONS: Transfers
 Schools may disclose records/info to
another school, school system, or
postsecondary institution where student
seeks or intends to enroll, or where student
is already enrolled, for purposes relating to
the transfer.
 Note: the new school has no special
authority to disclose to the old school. The
new school can: 1) ask for records from the
old school; 2) disclose directory information
to the old school; 3) obtain consent from
parent to disclose info to the old school
EXCEPTIONS – Financial Aid
The disclosure is in connection with
financial aid for which the student has
applied or which the student has
received, if the info is necessary for
such purposes as to (i) determine
eligibility; (ii) amount; (iii)
conditions; or (iv) enforcement.
EXCEPTIONS: Research
 Conducting study for, or on behalf of educational
agency to
 Develop, validate, or administer predictive tests;
 Administer student aid programs; or
 Improve instruction
Agency not required to initiate study or agree/endorse it
to authorize the study
EXCEPTIONS: Research
 Study conducted in a manner that protects
confidentiality and limits re-disclosure
 Personally identifiable info destroyed
 Written Agreement
 Purpose, scope, duration of study
 Permits use of records only for stated
purpose
 Must protect confidentiality and limit re-
disclosure
 Destroy records by date certain
EXCEPTIONS: Order or Subpoena
Judicial Order or Lawfully issued
Subpoena
Requires notice to parent or
eligible student
Beware of inadvertent disclosures
in electronic
disclosures/metadata.
EXCEPTIONS - Other
 Accrediting Organizations
 Parents of a Dependent Student
 Health and Safety Emergency
 DJJ
 Directory Information
 Subject to annual notice requirements/opt
out
EXCEPTIONS - Other
 Disciplinary Proceedings – institution of
postsecondary education may disclose
the outcome of proceeding to alleged
victim where there are allegations of
violent crime or non-forcible sex offense
 Registered Sex Offenders – where school
is notified under 42 USC 14071 that a
student (even minor) is registered sex
offender, information may be disclosed.
Contacts and Resources
 Miki Presley, Assistant General Counsel,
Department of Education: (850)245-9426;
[email protected]
 USDE Guidance on FERPA from the Family
Compliance Office:
http://www.ed.gov/policy/gen/guid/fpco/index.ht
ml
 Government in the Sunshine Manual:
http://myfloridalegal.com/sun.nsf/manual