Transcript Family Educational Rights and Privacy Act (FERPA) Statute: 20 U.S.C. § 1232(g) Regulations: 34 CFR Part 99 July18-22, 2011 Baron Rodriguez Allison Camara PTAC.

Family Educational Rights and
Privacy Act (FERPA)
Statute: 20 U.S.C. § 1232(g)
Regulations: 34 CFR Part 99
July18-22, 2011
Baron Rodriguez
Allison Camara
PTAC
What is FERPA?
The Family Educational Rights and Privacy Act (FERPA) is a federal law that
affords parents the right to have access to their children’s education records, the
right to seek to have the records amended, and the right to have some control
over the disclosure of personally identifiable information from the education
records.
When a student turns 18 years old, or enters a postsecondary institution at any age,
the rights under FERPA transfer from the parents to the student (“eligible
student”).
The FERPA statute is found at 20 U.S.C. § 1232g and the FERPA regulations are
found at 34 CFR Part 99.
Key definitions that apply to the regulations
 Education Records
 Personally Identifiable Information
 Directory Information
 Parent
 Student
 Record
“Education records”
 “Education records” are records that are –
•
directly related to a student; and
•
maintained by an educational agency or institution or by a party acting for the agency
or institution.
“Education records,” cont.
 Records on a student receiving services under Part B of the
Individuals with Disabilities Education Act are “education records”
subject to FERPA.
 Health records on students, including immunization records, who
are not eligible students are “education records” subject to FERPA.
“Education records,” cont.
 Exceptions to “education records” include –
•
•
•
•
Sole possession records used as a personal memory aid.
Law enforcement unit records.
Student employment records.
“Treatment records.”
Personally Identifiable Information
(PII)
 “Personally identifiable information” includes, but is not
limited to:
The student’s name;
Name of the student’s parent or other family members;
Address of the student or student’s family;
A personal identifier, such as a social security number,
student number, or biometric record;
• Other direct identifiers, such as the student’s date of birth,
place of birth, and mother’s maiden name;
•
•
•
•
PII, Cont.
 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
 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.
Directory Information
 “Directory information” is –
• Information not generally considered harmful or an invasion of privacy if
disclosed.
• Includes, but is not limited to:
•
•
•
•
•
•
•
•
•
•
•
name, address, telephone listing, electronic mail address
date and place of birth
photographs
participation in officially recognized activities and sports
field of study
weight and height of athletes
enrollment status (full-, part-time, undergraduate, graduate)
degrees & awards received
dates of attendance
most recent previous school attended
grade level
Directory Information, cont.
 “Directory information” cannot generally include a student’s social
security number or student ID number.
 A student’s ID number, user ID, or other unique personal identifier
used by the student for purposes of accessing or communicating in
electronic systems may be treated as “directory information” but only
if the identifier cannot be used to access education records, except
when used in conjunction with one or more factors that authenticate
the user’s identity, such as a personal ID, password, or other factor
known or possessed only by the authorized user.
Parent
“Parent” means a parent of a student and includes:
a natural parent, a guardian, or an individual acting as a parent in
the absence of a parent or guardian.
Student
 “Student” means any individual:
• who is or has been in attendance at a school; and
• regarding whom the school maintains education records.
Record
 “Record” means any information maintained in any way,
including, but not limited to:
•Handwriting
•Video or audio tape
•Computer media
•Film
•Print
•Microfilm and microfiche
FERPA Rights
 Parents
 Students
Primary Rights of Parents
under FERPA
 Right to inspect and review education records
 Right to seek to amend education records
 Right to consent to the disclosure of information from education
records, except as provided by law
Rights of Eligible Students under
FERPA
These rights under FERPA transfer to the student when he
or she turns 18 years of age or enters a postsecondary
institution at any age (“eligible student”).
Rights of Parents
§ 99.4 What are the rights of parents, custodial or
noncustodial?
 FERPA affords full rights to either parent, unless the school has been
provided with evidence that there is a court order, State statute or
legally binding document that specifically revokes these rights.
Rights of Students
§ 99.5 What are the rights of students?
 When a student becomes an eligible student, the rights accorded to,
and consent required of, parents under FERPA transfer from the
parents to the student.
 Nothing in FERPA prevents an educational agency or institution from
disclosing education records, or PII from education records, to a
parent without the prior written consent of an eligible student if the
disclosure meets the conditions in § 99.31(a)(8), § 99.31(a)(10), §
99.31(a)(15), or any other provision in § 99.31(a).
Rights of Students, cont.
 §99.31(a)(8) – The disclosure is to parents of a dependent student,
as defined in section 152 of the IRS Code.
 §99.31(a)(10) – The disclosure is in connection with a health or
safety emergency.
 §99.31(a)(15) – The disclosure is to a parent of a student at a
postsecondary institution regarding the student’s violation of any
Federal, State, or local law, or of any rule or policy of the institution,
governing the use or possession of alcohol or a controlled substance,
if the school determines that a student under the age of 21 has
committed a disciplinary violation with respect to that use or
possession.
 Or any other provision in § 99.31(a) that might apply.
FERPA Processes
 Annual Notification
Inspection and Review of Education Record
 Amending Education Records
Disclosure
Recordkeeping
Redisclosure
Audit or Evaluation
Health and Safety Emergencies
§ 99.7 What must an educational agency or
institution include in its annual notification?
 Schools must annually notify parents of students or eligible students in
attendance of their rights under FERPA, including:
•
•
•
•
Right to inspect and review education records;
Right to request amendment of education records;
Right to consent to disclosures, with certain exceptions;
Right to file a complaint with U.S. Department of Education
Annual Notification, cont.
The annual notification must also include the following:
•Procedure to inspect and review education records;
•A statement that education records may be disclosed to school officials without prior
written consent, including:
–Specification of criteria for determining who are school officials; and
–What constitutes a legitimate educational interest.
Annual Notification, cont.
 FERPA does not specify the means of notification, other than by any
means reasonably likely to inform the students. Examples include:
• Student handbook
• School newspaper or catalog
• Local newspaper
• Inclusion in student’s registration packet
• Website
Inspection and Review of Education
Record
§ 99.10 What rights exist for a parent or eligible student to
inspect and review education records?
•School must comply with request within 45 days.
•Schools are generally required to give copies only if failure to do so
would effectively deny access – example would be a student or former
student who does not live within commuting distance.
•School may not destroy records if request for access is pending.
Inspection and Review, cont.
State educational agencies (SEAs) are required to afford
parents and eligible students access to education records they
maintain on students.

•Applies to records even if a copy of the records is available at the
local educational agency (LEA).
•SEA may forward records to LEA to afford parents access to records
they are seeking.
Inspection and Review , cont.
§ 99.11 May an educational agency or institution charge a fee
for copies of education records?
Yes – unless imposing a fee effectively prevents a parent or
eligible student from exercising his or her right to inspect and
review education records.
§ 99.12 What limitations exist on the right to inspect and
review education records?
If the records contain information on more than one student, the
requesting parent or eligible student may inspect, review, or be
informed of only the specific information about his or her child’s
records.
What are the Procedures for
Amending Education Records?
§99. 20, §99.21, §99.22
• Parent or eligible student should identify portion of record believed to
contain inaccurate or misleading information.
• School must decide within reasonable period of time whether to
amend as requested.
• If school decides not to amend, must inform parent or eligible student
of right to a hearing.
•After hearing, if decision is still not to amend, parent or eligible has a
right to insert a statement in the record.
Disclosure of Personally Identifiable Information
From Education Records by an Educational Agency
or Institution
§ 99.30 Under what conditions is prior consent required to
disclose information?
 Except for specific exceptions, a parent shall provide a signed and
dated written consent before a school may disclose education records.
The consent must:
• Specify records that may be disclosed;
• State purpose of disclosure; and
• Identify party or class of parties to whom disclosure may be made.
Consent, cont.
 If a parent or eligible student so requests, the educational agency
or institution shall provide him or her with a copy of the records
disclosed.
“Signed and dated written consent’ under FERPA may include a
records and signature in electronic form that –
• Identifies and authenticates a particular person as the source of the
electronic consent; and
• Indicates such person’s approval of the information contained in the
electronic consent.
Disclosure provisions
§ 99.31 Under what conditions is prior consent not required to
disclose information?
 The exceptions which relate to LEAs are:
• To school officials with legitimate educational interests (defined in annual
notification)
• To schools in which a student seeks or intends to enroll
• To authorized representatives of Federal, State, and local educational
authorities conducting an audit, evaluation, or enforcement of education
programs
• In connection with financial aid, such as a college loan
Disclosure provisions, cont.
 Exceptions, cont.
• To State and local officials pursuant to a State statute in connection
with serving the student under the juvenile justice system
• To organizations conducting studies on behalf of schools
• To accrediting organizations
• To parents of a dependent student
• To comply with a judicial order or subpoena (reasonable effort to
notify)
• In a health or safety emergency
• Directory information
Recordkeeping
§ 99.32 What recordkeeping requirements exist concerning requests
and disclosures?
 An educational agency or institution must maintain a record of each request for
access to and each disclosure from an education record, as well as the names of
State and local educational authorities and Federal officials and agencies listed in §
99.31(a)(3) that may make further disclosures of personally identifiable information
from the student’s education records without consent under § 99.33.
Recordkeeping, cont.
 This record of access must:
• Be maintained as long as record is maintained;
• Include the parties who have requested or received information from education
records; and
• Include the legitimate interest parties had in receiving information.
 An educational agency or institution must obtain a copy of the record of
further disclosures made by the SEA and make it available in response
to a parent’s or eligible student’s request to review the record.
Recordkeeping, cont.
A State or local educational authority or Federal official or agency listed in §
99.31(a)(3) that makes further disclosures of information from education records
under § 99.33(b) must record the names of the additional parties to which it
discloses information on behalf of an educational agency or institution and their
legitimate interests in the information under § 99.31 if the information was
received from:
Another educational agency or institution that has not recorded the further
disclosures; or
Another State or local educational authority or Federal official or agency listed
in § 99.31(a)(3).
Recordkeeping, cont.
 The recordkeeping requirement does not apply if the request was
from, or the disclosure was made to:
• The parent or eligible student,
• A properly designated school official for a legitimate educational
purpose,
• A party with written consent from the parent or eligible student,
• A party seeking directory information, or
• A party with a law enforcement subpoena or court order which
specifies that the existence or contents of the subpoena or court order
not be disclosed.
Redisclosure
§ 99.33 What limitations apply to the redisclosure of
information?
 When disclosing information from education records to one of
the parties listed under § 99.31, a school should inform the
receiving party that the information may not be further disclosed,
except when:
• The disclosure is to the parent or eligible student
• The receiving party discloses information on behalf of the
school under § 99.31
Redisclosure, cont.
 The disclosure was made pursuant to a court order,
subpoena, or in connection with litigation between the
school and student
 The disclosure is to the parents of a dependent student
 The information disclosed is directory information
Audit or Evaluation
§ 99.35 What conditions apply to disclosure of information
for Federal or State program purposes?
 Federal, State, and local officials listed under §99.31(a)(3)
may have access to records only -• in connection with an audit or evaluation of Federal or State
supported education programs, or
• For the enforcement of or compliance with Federal legal
requirements which relate to those programs.
Audit or Evaluation, cont.
 The information must be
• Protected from disclosure to anyone else
• Destroyed when no longer needed for the purposes listed above
 Except that those officials and agencies listed in § 99.31(a)(3) may make further
disclosures of personally identifiable information from education records on
behalf of the educational agency or institution in accordance with the
requirements of § 99.33(b).
 Section 99.33(b) states that a party that receives PII from an educational
agency or institution may make further disclosures on behalf of the agency or
institution if the disclosures meet requirements of § 99.31 and the recordation
requirements in § 99.32(b).
Health and Safety Emergencies
§ 99.36 What conditions apply to disclosure of information in
health or safety emergencies?
 Disclosure to appropriate parties in connection with an emergency if
knowledge of information is necessary to protect the health or safety
of the student or others.
 “Appropriate parties” may include parents of an eligible student.
Health or Safety Emergencies,
cont.
 If school determines that there is an articulable and significant threat to
the health or safety of a student or other individuals, it may disclose
information from education records to any person whose knowledge of
the information is necessary to protect the health or safety of the
student or other individuals.
 If, based on the information available at the time, there is a rational
basis for the determination, the Department will not substitute its
judgment for that of the school’s in evaluating the circumstances and
making its determination.
Health or Safety Emergencies, cont.
 An educational agency or institution must record the following
information when it discloses personally identifiable information from
education record under the health or safety emergency exception:
•The articulable and significant threat to the health or safety of a student or
other individuals that formed the basis for the disclosure; and
•The parties to whom the agency or institution disclosed the information.
See § 99.32(a)(5)
§§ 99.60-99.67 What are the
Enforcement Provisions?
 The Family Policy Compliance Office is authorized by the
Secretary of Education to investigate, process, and review
complaints and violations under FERPA.
 Parents and eligible students may file complaints with the U.S.
Department of Education.
 Timely complaint = 180 days
§99.67 How does the Secretary enforce
decisions?
 If an educational agency or institution does not comply within the
period of time set forth by the Family Policy Compliance Office (FPCO),
the Secretary can take any legally available enforcement action in
accordance with FERPA, including, but not limited to, the following
enforcement actions available in accordance with part E of the General
Education Provisions Act –
• Withhold further payments under any applicable program;
• Issue a complaint to compel compliance through a cease-and-desist
order; or
• Terminate eligibility to receive funding under any applicable program.
Proposed Changes to FERPA
 Stronger enforcement
 Ensuring student safety
 Promote wise investment of taxpayer funds in educational programs
 Promote effectiveness research
FERPA: Ensuring Student Safety
Limited Directory Information
CURRENT
PROPOSED
INTERPRETATION
INTERPRETATION
EFFECT OF
PROPOSED
CHANGE
Clarify that
Educational
agencies may
None
specify that
Directory
Information will be
disclosed only for
Gives entities
greater discretion
in releasing
Directory
Information
specified purposes.
46
FERPA: Ensuring Student Safety
Student ID Badges
EFFECT OF
CURRENT
PROPOSED
INTERPRETATION
INTERPRETATION
Unclear whether
Clarify that a school
students can be
may require a
Allows schools
student to wear an
the discretion to
ID badge that
require the
exhibits information
wearing of ID
that has been
badges by all
required to wear
ID badges if they
opt out of
directory
designated as
information.
directory information.
PROPOSED
CHANGE
students.
47
Contact Information
Family Policy Compliance Office
Privacy Technical Assistance Center
(202) 260-3887
Telephone
(202) 260-3887
Telephone
[email protected]
Email
[email protected]
Email
(202) 260-9001
Fax
Website:
http://www2.ed.gov/policy/gen/guid/fpco
/index.html
Website:
http://nces.ed.gov/programs/ptac/