July18-22, 2011

1. 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

2. 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.

3. Key definitions that apply to the regulations • Education Records • Personally Identifiable Information • Directory Information • Parent • Student • Record

4. “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.

5. “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.

6. “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.”

7. 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;

8. 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.

9. 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

10. 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.

11. 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.

12. Student “Student” means any individual: who is or has been in attendance at a school; and regarding whom the school maintains education records.

13. 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

14. FERPA Rights • Parents • Students

15. 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

16. 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”).

17. 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.

18. 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).

19. 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.

20. FERPA Processes • Annual Notification • Inspection and Review of Education Record • Amending Education Records • Disclosure • Recordkeeping • Redisclosure • Audit or Evaluation • Health and Safety Emergencies

21. § 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

22. 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.

23. 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

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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

31. 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

32. 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.

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.

34. 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).

35. 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.

36. 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

37. 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

38. 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.

39. 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).

40. 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.

41. 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.

42. 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)

43. §§ 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

44. §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.

45. Proposed Changes to FERPA • Stronger enforcement • Ensuring student safety • Promote wise investment of taxpayer funds in educational programs • Promote effectiveness research

46. FERPA: Ensuring Student SafetyLimited Directory Information CURRENT INTERPRETATION PROPOSED INTERPRETATION EFFECT OF PROPOSED CHANGE

47. FERPA: Ensuring Student SafetyStudent ID Badges CURRENT INTERPRETATION PROPOSED INTERPRETATION EFFECT OF PROPOSED CHANGE

48. Contact Information Family Policy Compliance Office (202) 260-3887 Telephone FERPA@ed.gov Email (202) 260-9001 Fax Website: http://www2.ed.gov/policy/gen/guid/fpco/index.html Privacy Technical Assistance Center (202) 260-3887 Telephone • privacyTA@ed.gov Email • Website: • http://nces.ed.gov/programs/ptac/