Transcript FERPA and University Research Records ECURE 3:00-4:00, March 2, 2004 Richard Rainsberger Consultant, Education Records Law and Privacy.

FERPA and University
Research Records
ECURE
3:00-4:00, March 2, 2004
Richard Rainsberger
Consultant, Education Records Law and
Privacy
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FAMILY EDUCATIONAL RIGHTS
AND PRIVACY ACT OF 1974
"A FEDERAL LAW DESIGNED TO PROTECT THE
PRIVACY OF EDUCATION RECORDS AND TO
ESTABLISH THE RIGHT OF STUDENTS TO INSPECT
AND REVIEW THEIR EDUCATION RECORDS."
________________________________
DEFINITIONS OF TERMS FOR ADMISSIONS AND RECORDS. Washington, D.C.: AACRAO, 1980, p. 28.
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FAMILY EDUCATIONAL RIGHTS
AND PRIVACY ACT OF 1974
THIS ACT IS ENFORCED BY THE
FAMILY POLICY COMPLIANCE OFFICE,
U.S. DEPARTMENT OF EDUCATION,
WASHINGTON, D.C.
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The Authoritative Source
Family Policy Compliance Office
Leroy Rooker, Director
U.S. Dept. of Education
400 Maryland Ave., SW
Washington,D.C. 20202-4605
(202) 260-9002 (fax)
[email protected]
www.ed.gov/offices/OM/fpco.html
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THE ESSENCE OF THE ACT
• COLLEGE STUDENTS, PAST AND PRESENT, MUST BE
PERMITTED TO INSPECT THEIR OWN EDUCATION
RECORDS.
• SCHOOL OFFICIALS MAY NOT DISCLOSE PERSONALLY
IDENTIFIABLE INFORMATION ABOUT STUDENTS NOR
PERMIT INSPECTION OF THEIR RECORDS WITHOUT
WRITTEN PERMISSION OF THE STUDENT UNLESS SUCH
ACTION IS COVERED BY CERTAIN EXCEPTIONS PERMITTED
BY THE ACT.
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SOME KEY CONCEPTS
 Written permission of student required to disclose
 The exceptions to written permission
 Student's right to access their records
 Legitimate Educational Interest
 The “mays” and the “musts” of FERPA
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SOME KEY TERMS
 Education Record
 Personally Identifiable
 Directory Information
 School Official
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WHAT IS AN EDUCATION
RECORD?
 ANY RECORD, WITH CERTAIN EXCEPTIONS, MAINTAINED
BY AN INSTITUTION THAT IS DIRECTLY RELATED TO A
STUDENT OR STUDENTS. FROM WHICH AN INDIVIDUAL
STUDENT CAN BE PERSONALLY (INDIVIDUALLY)
IDENTIFIED
 THESE RECORDS INCLUDE: FILES, DOCUMENTS, AND
MATERIALS IN WHATEVER MEDIUM (HANDWRITING,
PRINT, TAPES, DISKS, FILM, MICROFILM, MICROFICHE,
ELECTRONIC STORAGE) WHICH CONTAIN INFORMATION
FROM WHICH STUDENTS CAN BE PERSONALLY
(INDIVIDUALLY) IDENTIFIED.
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“PERSONALLY IDENTIFIABLE”
"PERSONALLY IDENTIFIABLE" MEANS DATA OR
INFORMATION WHICH INCLUDES:
(1) THE NAME OF THE STUDENT, THE STUDENT'S PARENT, OR
OTHER FAMILY MEMBERS
(2) THE STUDENT'S CAMPUS OR HOME ADDRESS;
(3) A PERSONAL IDENTIFIER (SUCH AS A SOCIAL SECURITY
NUMBER OR STUDENT NUMBER)
(4) A LIST OF PERSONAL CHARACTERISTICS OR OTHER
INFORMATION WHICH WOULD MAKE THE STUDENT'S
IDENTITY EASILY TRACEABLE
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Grades Posted on Bulletin Board
outside of Instructor’s Office
Instructor Summary-Fall 1999-December 15, 1999
GradeBook-Unregistered Copy
MKT 227 Fall 99
A = 90.0
2949
4532
5599
1197
7463
6115
7692
2342
1543
6748
RgAvg%
100.00
93.8
84.5
83.1
71
72.6
66.2
66.9
68.1
62.9
61.8
B = 80.0
ExtCr %
5.6
2.1
4.2
0.7
0.7
0.7
5.6
4.2
1.4
0.7
0.7
C = 70.0
D = 60.0
Grade
A
B
B
B
C
C
C
D
D
D
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WHAT AN EDUCATION RECORD
IS NOT!!

“SOLE POSSESSION” NOTES

LAW ENFORCEMENT UNIT RECORDS

RECORDS MAINTAINED EXCLUSIVELY FOR INDIVIDUALS IN THE
THEIR CAPACITY AS EMPLOYEES
 RECORDS OF INDIVIDUALS WHO ARE EMPLOYED AS A RESULT OF
THEIR STATUS AS STUDENTS (WORK STUDY) ARE EDUCATION
RECORDS.

DOCTOR-PATIENT PRIVILEGE RECORDS

ALUMNI RECORDS
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WHAT IS AN EDUCATION
RECORD? (SUMMARY)
IF YOU HAVE A RECORD THAT IS:
•MAINTAINED BY YOUR INSTITUTION
•PERSONALLY IDENTIFIABLE TO A STUDENT
•NOT ONE OF THE EXCLUDED CATEGORIES OF
RECORDS…
IT IS SUBJECT TO FERPA
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DIRECTORY INFORMATION
• INFORMATION NOT NORMALLY
CONSIDERED A VIOLATION OF A PERSON’S
PRIVACY
• THIS INFORMATION MAY BE RELEASED
WITHOUT THE STUDENT’S WRITTEN
PERMISSION.
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WHAT CAN DIRECTORY
INFORMATION INCLUDE?
DIRECTORY INFORMATION MAY INCLUDE THE
FOLLOWING STUDENT INFORMATION:

STUDENT’S NAME


ADDRESS


TELEPHONE NUMBER

DATE/PLACE OF BIRTH

MAJOR





FIELDS OF STUDY
PARTICIPATION IN
OFFICIALLY RECOGNIZED
ACTIVITIES AND SPORTS
HEIGHT/WEIGHT OF
ATHLETIC TEAM MEMBERS
DATES OF ATTENDANCE
DEGREES AND AWARDS
RECEIVED
MOST RECENT EDUCATIONAL
INSTITUTION ATTENDED
OTHER SIMILAR
INFORMATION AS DEFINED BY
THE INSTITUTION
THAT
WOULD NOT NORMALLY BE
CONSIDERED AN INVASION OF
A STUDENT’S PRIVACY
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WHAT CAN DIRECTORY
INFORMATION INCLUDE?
DIRECTORY INFORMATION MAY INCLUDE THE
FOLLOWING RECENT ADDITIONS TO STUDENT INFORMATION:


CLASS
SCHEDULE


CLASS ROSTERS
PHOTOGRAPHS
E-MAIL
ADDRESS
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WHAT CAN DIRECTORY
INFORMATION INCLUDE?
DIRECTORY INFORMATION CAN NEVER INCLUDE A
STUDENT’S:

RACE


GENDER

SOCIAL
SECURITY
NUMBER




GRADES
GPA
COUNTRY OF
CITIZENSHIP
RELIGION
TEST SCORES
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DIRECTORY INFORMATION
Must be defined as such by each institution.
If a data element isn’t defined as “directory
information” it isn’t directory information and
can only be released if the student’s written
permission is obtained or the release can be
justified under one of the exceptions to
students’ written permission found in FERPA.
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DIRECTORY INFORMATION
Know what your
institution identifies as
directory information.
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“School Officials”
Don’t read
the Small Print
A “SCHOOL OFFICIAL” CAN BE A PERSON:
1) EMPLOYED BY THE COLLEGE IN AN ADMINISTRATIVE, SUPERVISORY, ACADEMIC, RESEARCH, OR SUPPORT STAFF
POSITION (INCLUDING LAW ENFORCEMENT AND HEALTH STAFF PERSONNEL),
2) ELECTED TO THE BOARD OF TRUSTEES,
3) OR COMPANY EMPLOYED BY OR UNDER CONTRACT TO THE COLLEGE TO PERFORM A SPECIAL TASK SUCH AS THE
ATTORNEY, AUDITOR, OR COLLECTION AGENCY,
4) OR STUDENT SERVING ON AN OFFICIAL COMMITTEE, SUCH AS A DISCIPLINARY OR GRIEVANCE COMMITTEE, OR
ASSISTING ANOTHER SCHOOL OFFICIAL IN PERFORMING HIS OR HER TASKS.
SUMMARY: IF YOU ARE AN
EMPLOYEE OF A UNIVERSITY, OR A
COLLEGE TRUSTEE, YOU ARE A
“SCHOOLOFFICIAL” FOR FERPA
PURPOSES.
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“LEGITIMATE EDUCATIONAL
INTEREST”
THE DEMONSTRATED NEED TO KNOW BY THOSE OFFICIALS OF AN
INSTITUTION WHO ACT IN THE STUDENT’S EDUCATIONAL INTEREST,
INCLUDING FACULTY, ADMINISTRATION, CLERICAL AND
PROFESSIONAL EMPLOYEES, AND OTHER PERSONS WHO MANAGE
STUDENT RECORD INFORMATION.
FERPA DOES NOT DEFINE “LEGITIMATE EDUCATIONAL INTEREST.” IT
STATES THAT INSTITUTIONS MUST SPECIFY THE CRITERIA FOR
DETERMINING IT.
USUALLY IDENTIFIED AS A “CONTRACTED DUTY” OF THE SCHOOL
OFFICIAL
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REQUIREMENTS FOR
COMPLIANCE
WHAT WE MUST DO...
 PROVIDE ANNUAL NOTIFICATION TO STUDENTS
OF THEIR FERPA RIGHTS
 PROVIDE STUDENTS’ ACCESS TO THEIR
EDUCATION RECORDS
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PROCEDURES AND
STRATEGIES FOR COMPLIANCE
A. DISCLOSURE OF EDUCATION RECORD
INFORMATION
1. INSTITUTIONS MAY DISCLOSE EDUCATION RECORDS
WITHOUT WRITTEN CONSENT OF STUDENTS TO THE
FOLLOWING:
SEE ATTACHMENT A
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PROCEDURES AND STRATEGIES
FOR COMPLIANCE
B. RECORDS OF REQUESTS AND
DISCLOSURES
1. ALL INSTITUTIONS ARE REQUIRED TO MAINTAIN
RECORDS OF REQUESTS AND DISCLOSURES OF
PERSONALLY IDENTIFIABLE INFORMATION
a. THESE RECORDS WILL INCLUDE THE NAMES AND
ADDRESSES OF THE REQUESTOR AND HIS/HER
INDICATED INTEREST IN THE RECORDS.
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PROCEDURES AND STRATEGIES
FOR COMPLIANCE
B. RECORDS OF REQUESTS AND
DISCLOSURES
2. THESE RECORDS MUST BE RETAINED AS
LONG AS THE EDUCATION RECORDS TO
WHICH THEY REFER ARE MAINTAINED BY
THE INSTITUTION.
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PROCEDURES AND STRATEGIES
FOR COMPLIANCE
C. RECORDS OF REQUESTS AND
DISCLOSURES DO NOT HAVE TO BE KEPT
FOR:
a. REQUESTS FROM STUDENTS FOR THEIR OWN USE
b. DISCLOSURES IN RESPONSE TO WRITTEN REQUESTS
FROM STUDENTS
c. REQUESTS MADE BY SCHOOL OFFICIALS
d. THOSE SPECIFIED AS DIRECTORY INFORMATION
e. WHAT'S LEFT?
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Institutions may release information
without written permission to…
Organizations conducting studies to
develop, validate, and administer
predictive tests, to administer student aid
programs, or to improve instruction,
See Attachment A, #5
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Subjects’Access to their Records
Do subjects of studies have a legal
right to access their records?
YES…as long as the records are
subject to FERPA
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Handling Subpoenas
 A court order normally not reviewed by a judge
before being issued.
 If issued by a state court, it only has jurisdiction
within that state.
 If issued by a federal district court, it has
jurisdiction in all 50 states.
 Does your institution have a policy on handling
subpoenas?
 If not, determine what steps you will follow if you
receive one.
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Spouses’/Relatives’ Access to
Students’ Records
Do spouses/relatives of students of
research studies have a legal right to
access those records?
NO!!
You may release if they have the
student’s written permission to access
specific documents.
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Parents’ Access to Students’
Records
Parents may prove that the student
is their legal dependent (See
Attachment A, #7)
The decision to release is still
yours.
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Genealogical Research
Do spouses/relatives of students of
research studies have a legal right to
access those records?
NO!!
FERPA ceases upon the
student’s death. You need
to determine if the student
is deceased. Do you have a
policy?
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States’ Open Records Laws
Only applies to public institutions
FERPA is the controlling law.
 Directory information may be
subject to review. Non-directory
information under FERPA is not.
Usually exemptions granted for
education records in FOIA laws
(FOIA=Freedom of Information Act)
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States’ Open Records Laws
http://web.missouri.edu/%7
Efoiwww/citelist.html
NO SPACES IN ABOVE URL
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So…
What would you do
if a researcher
requested records
under your control?
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Your Decision Tree
 Is it an education record?
 Is there a signed consent from
the student to release?
 May I release the information
without signed consent of the
student?
 Should I?
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To Contact Me…
Richard A. Rainsberger, Ph.D.
Consultant
Education Records Law and Privacy
[email protected]
330-364-6976
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