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DISCLOSURE OF STUDENT DATA

DISCLOSURE OF STUDENT DATA. Mari M. “Miki” Presley Assistant General Counsel Florida Department of Education. PUBLIC RECORDS. Unless an exemption exists, all records held by a public agency are subject to disclosure. Primary exemption for student records is FERPA. PUBLIC RECORDS.

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DISCLOSURE OF STUDENT DATA

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  1. DISCLOSURE OF STUDENT DATA Mari M. “Miki” Presley Assistant General Counsel Florida Department of Education

  2. PUBLIC RECORDS • Unless an exemption exists, all records held by a public agency are subject to disclosure. • Primary exemption for student records is FERPA.

  3. PUBLIC RECORDS • Does the Record “exist?” • Is there an exception? (e.g., FERPA) • Can confidential material be redacted? • Can the agency charge a fee for disclosure?

  4. FERPA

  5. Rights Protected by FERPA • Students and/or parents have right to ACCESS education records • Personally identifiable education records are CONFIDENTIAL

  6. 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

  7. ACCESS - Parents • “Parent” means natural parent, guardian, or individual acting as parent in absence of parent or guardian • An agency must provide records to either parent, unless agency has been provided w/ court order, statute, or legally binding document specifically revoking the parent’s rights

  8. ACCESS - Parents • Even where student is “eligible,” student records can be released to parents: • If student is the dependent of one of the parents (for tax purposes), records can be released to either parent • If there is an emergency and disclosure is necessary to protect the health or safety of the student or others • For postsecondary students, if student has violated law or policy of institution governing use of alcohol or controlled substances, if the institution determines that the student has committed a disciplinary violation and student is less than 21 at the time of disclosure.

  9. Confidentiality • Is the record an “education record?” • Is the record “personally identifiable?” • Does the requestor have consent? • Exceptions – disclosure without consent

  10. “education record” • 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

  11. Personally Identifiable Records • Automatically Identifiable Characteristics: • Student’s name • Parent’s name • Address of student or family • Personal identifiers (ss#, student number, etc.) • Date of Birth • Place of Birth • Mother’s maiden name

  12. Personally Identifiable Records • Indirectly identifiable information Standard is whether a reasonable person in the school community having NO PERSONAL KNOWLEDGE of the relevant circumstances would be able to identify the student with reasonable certainty

  13. Personally Identifiable Records- Indirectly Identifiable Data Disclosure • Levels of Aggregation • Multiple Releases • Masking Protocols • “De-identified” records and information

  14. 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

  15. 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

  16. 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

  17. EXCEPTIONS – Ed. Officials • Disclosures to other school officials within agency may be made if individual has legitimate educational purpose. • Disclosures to contractor, consultant, volunteer, or other entity to whom institutional services have been outsourced are permissible if the individual • performs a function for which the agency would otherwise use employees • Is under direct control of the agency; and • Is required to maintain confidentiality in accordance w/ FERPA

  18. EXCEPTIONS – Ed. 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

  19. 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

  20. 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.

  21. 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

  22. EXCEPTIONS - Research • Study conducted in a manner that protects confidentiality and limits redisclosure • Personally identifiable info destroyed • Written Agreement • Purpose, scope, duration of study • Permits use of records only for stated purpose • Must protect confidentiality and limit redisclosure • Destroy/return records by date certain

  23. EXCEPTIONS - Other • Accrediting Organizations • Parents of a Dependent Student • Judicial Order or Lawfully issued Subpoena • Requires notice to parent or eligible student • Health and Safety Emergency • DJJ • Directory Information • Subject to annual notice requirements/opt out

  24. 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.

  25. Contacts and Resources • Miki Presley, Assistant General Counsel, Department of Education: (850)245-9426; Mari.Presley@fldoe.org • USDE Guidance on FERPA from the Family Compliance Office: http://www.ed.gov/policy/gen/guid/fpco/index.html • Government in the Sunshine Manual: http://myfloridalegal.com/sun.nsf/manual

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