FERPA FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT

1. FERPAFAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT FAMIS CONFERENCE Mari M. Presley, Assistant General Counsel Florida Department of Education June 12, 2012

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

3. 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.

4. 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

5. CONFIDENTIALITY General Rule: Personally Identifiable Student records are confidential and must not be disclosed without consent

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

7. “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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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.

17. Exceptions – Ed. Officials To designate an “authorized representative,” an agency must have a written agreement that meets the requirements of 34 CFR § 99.35

18. 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

19. 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.

20. 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

21. 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

22. 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.

23. EXCEPTIONS - Other • Accrediting Organizations • Parents of a Dependent 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