FERPA Family Educational Rights and Privacy Act

FERPAFamily Educational Rights and Privacy Act • From Managing the Privacy of Student Records, by Clifford A. Ramirez, LRP Publications, 2002. • From FERPA, Clear and Simple, The college professional’s Guide go Compliance., by Clifford A. Ramirez, John Wiley and Sons, Inc., 2009. • From The Registrar’s Companion, An overview of the 11 Federal Laws Every Registrar Should Know, by Stacey L. Winick, Esq., LRP Publications, 2006. • From The Federal Regulation of Student Affairs: An Update on FERPA and the Clery Act, by John Wesley Lowery, NASPA/Stetson, Student Affairs Law and Policy Conference, 2007. • From The Fundamentals of Fundamental FERPA, by Steven J. McDonald, NASPA/Stetson, National Conference on Law, Higher Education, 2009. • From ASJA Law and Policy Report, 1-29-09, No. 309, by Gary Pavela, LRP, 2009. Ross J. Kosinski, Ph.D. Dean of Students

FERPA– Family Educational Rights and Privacy Act 1974 – Buckley Amendment (Sen. Buckley, NY) Federal Statute governing privacy of student education records and student information Governed under the Department of Education’s; Family Policy Compliance Office (FPCO) Advises institutions about FERPA Investigates complaints of non-compliance with FERPA Resolves complaints of non-compliance with FERPA violation does not need to represent a “policy or practice” no provision under FERPA for student to sue because of a violation institution allowed to voluntarily correct could lose federal funding - to date, this has never occurred www.ed.gov/offices/OM/fpco.htlm FERPA@ed.gov for Education Officials only

FERPA: a regulation FERPA’s regulations are governed under the Department of Education (FPCO) because: Universities receive ________ ________ from the Department of Education.

FERPA: a regulation FERPA’s regulations are governed under the Department of Education (FPCO) because: Universities receive federal funding from the Department of Education.

FERPA FERPA was written specifically to guarantee students four primary rights: The right to: • _________ their education records. • _________ their education records. • _________ over the disclosure of their education records. • _________ for an alleged violation of their FERPA rights. .

FERPA FERPA was written specifically to guarantee students three primary rights: The right to: • inspect their education records. • ______ their education records. • ______ the disclosure of their education records. • __________for an alleged violation of their FERPA rights.

FERPA FERPA was written specifically to guarantee students three primary rights: The right to: • inspect their education records. • amendtheir education records. • ______the disclosure of their education records. • __________for an alleged violation of their FERPA rights.

FERPA FERPA was written specifically to guarantee students three primary rights: The right to: • inspect their education records. • amendtheir education records. • control the disclosure of their education records. • __________for an alleged violation of their FERPA rights.

FERPA FERPA was written specifically to guarantee students three primary rights: The right to: • inspect their education records. • amendtheir education records. • control the disclosure of their education records. • file a complaintfor an alleged violation of their FERPA rights. Note: rights are transferred from parents to students at 18 years of age or if student is enrolled in a postsecondary institution. Parents may retain rights if student is still their dependant under the federal tax code.

FERPA Policy Changing Case MIT, relatives settle suit over student suicide Elizabeth Shin had been treated for medical problems and suicide threats at MIT before she set herself on fire in her dorm room in 2000. By Marcella Bombardieri, Globe Staff | September 2, 2006 Law allows disclosure of personal information when risk of safety is evident. This case and the VT case highlight the need for more relaxed privacy policies when addressing students with serious behavioral needs. FERPA (Family Rights and Privacy Act) has been relaxed in this regard. Note: health and safety threat – must be significant and disclosed to appropriate individuals

FERPA Institutions must advise students of their FERPA rights at least __________.

FERPA Institutions must advise students of their FERPA rights at least annually. What we do: • FERPA is first addressed with students at “New Student Orientation”. • All students sign a statement that they are responsible for the contents of the Student Handbook. • Annual notification of their FERPA rights is made available to students via email that their FERPA rights can be viewed in the online Student Handbook.

FERPA Definitions • Student • In attendance • Applicant and Application Records • Education Records • Education Official • Directory Information

FERPA Definitions - Student A student is any individual who: • is, or has been ___ _________, • has a “________ ________” • and for whom MWU ___________ educational records.

FERPA Definitions - Student A student is any individual who: • is, or has been inattendance, • has a “_________ _________” • and for whom MWU _______educational records. in attendance (registered and enrolled)

FERPA Definitions - Student A student is any individual who: • is, or has been inattendance, • has a “student status” • and for whom MWU ______ educational records. in attendance (registered and enrolled) student status (may not be enrolled, but on a LOA)

FERPA Definitions - Student A student is any individual who: • is, or has been inattendance*, • has a “student status” ** • and for whom MWU maintains educational records *in attendance (registered and enrolled) **student status (may not be enrolled, but was – on an LOA)

FERPA Definitions – Applicant An applicant is not defined as a “student” under FERPA and is not protected under FERPA. An applicant may be accepted, but does not yet attend and is not participating in the educational program. However, when does student status begin? Deposited? New Student Orientation? First day of classes? Note: FERPA does not comprehensively define, but does stress “participation in the educational programs” or “enrolled” as a key, which is what we use at MWU.

FERPA Definitions – Application Records Application records include: • Transcripts • Letters of recommendation • Personal statements Some Applicant records should be destroyed after matriculation otherwise, they will become education records and subject to FERPA. Note: school must make reasonable effort to notify the student that disclosure of education records will be made to an institution, e.g., residency Best to have student sign a release when writing letters of recommendation

FERPA Definitions – Education record An education record is: ____ _______ that _________ a student, and that is _________ by the educational institution (or by an educational affiliate).

FERPA Definitions – Education record An education record is: any record that _________ _______ a student, and that is _________ by the educational institution (or by an educational affiliate).

FERPA Definitions – Education record An education record is: any record that personally identifies a student, and that is ________ by the educational institution (or by an educational affiliate).

FERPA Definitions – Education record An education record is: any record that personally identifies a student, and that is maintained by the educational institution (or by an educational affiliate).

FERPA 99.3 Records means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche. However: There are records that are maintained by a faculty member or an educational institution that qualify as exceptions under FERPA.

FERPA Exceptions to Education Records • Sole Possession Records Education records are records that are, by their nature, sharedor have the potential to be shared with at least one education official. Note: 1) note to self about a student is not an education record 2) personal opinions are not thought of as education records

FERPA Definitions – Education Official An education official is a person: • with a legitimate educational interest in having access to student educational records; • employed by, or under contract to, the institution in an administrative, supervisory, academic, research, or other support staff position or in a position performing a special task, such as an attorney, an auditor, a preceptor or even a student; • serving on an institutional governing board

FERPA Exceptions to Education Records continued • Sole Possession Records • Law Enforcement Records Law enforcement records are created and maintained by a law enforcement/security agency for the purposes of law enforcement/security unless those records are shared with educational officials.

FERPA Exceptions to Education Records continued • Sole Possession Records • Law Enforcement Records • EmploymentRecords Employment records are only educational records if employment is conditional upon the person being a student. Example: A TA must be a student so the TA’s employment records are also education records.

FERPA Exceptions to Education Records continued • Sole Possession Records • Law Enforcement Records • Employment Records • Medical Records Medical records can be education records if they are used to justify or support a student’s actions or needs. Examples: Documentation for testing accommodations or for clinical rotation needs

FERPA Exceptions to Education Recordscontinued • Sole Possession Records • Law Enforcement Records • Employment Records • Medical Records • Alumni Records Alumni records are not education records because the alum is not a “student”. The alum’s student records are still considered their education records though.

FERPA Definitions – Directory Information Directory information is information in an educational record not generally considered __________ or an invasion of the student’s __________ if disclosed, so it can be released without a student’s written consent – with a couple of stipulations.

FERPA Definitions – Directory Information Directory information is information in an educational record not generally considered harmful or an invasion of the student’s _______ if disclosed, so it can be released without a student’s written consent – with a couple of stipulations.

FERPA Definitions – Directory Information Directory information is information in an educational record not generally considered harmful or an invasion of the student’s privacy if disclosed, so it can be released without a student’s written consent – with a couple of stipulations. Note: Institutions must identify Directory Information and allow students the right to restrict the disclosure of their Directory Information, which it does in Appendix 3 of the Student Handbook. MWU policy is: “Do not disclose Directory Information unless required to do so legally” - always check with Registrar or my office.

FERPA Definitions – Directory Information FERPA identifies information that may be included and that must not be included in directory information based upon it being public or private and whether it may be a danger to the student being described or identified by the information. FERPA also leaves it to the discretion of an institution to release directory information or not to release directory information – MWU does not release, with exception that the Registrar may identify that someone is a student and is in a particular program, unless for health or safety jssues.

FERPA Directory Information May include: Name Address Telephone number Email address Major field of study Dates of attendance Enrollment status Degrees and awards received Date and place of birth Most recent previous school attended Photographs Must not include Student ID Number Social Security Number Race Ethnicity Nationality Gender

FERPA Prior Written Consent “When in doubt, think prior written consent.” Leroy Rooker, former director of the Family Policy Compliance Office Which is MWU policy

FERPA • Student Handbook – Appendix 3: Guidelines for Access to and Disclosure of Educational Records Maintained by Midwestern University • Definitions • Inspection and Review of Records • Amendment of Education Records • Disclosure of Personally Identifiable Information from Education Records • Annual Notification of Rights

FERPA • Examples of signed releases that SFS uses • Code of Responsibility for Student Employees

FERPA Q. Does HIPAA change or modify any of FERPA’s provisions regarding disclosure of Medical Records or Educational Records? A. No– HIPAA’s privacy rule expressly states it does not affect or change FERPA. FERPA is the protector of the privacy of information entered into a student’s record, including health-related information – as long as it pertains to educational records.

FERPA Q. What are some of the conditions or agencies whereby education records could be disclosed without a student’s consent? A. • School officials with a legitimate educational interest • Specified officials for audit or evaluation • Appropriate individuals/parties in connection with financial aid to a student • Accrediting organizations • To comply with judicial order or lawfully issued subpoenas • Appropriate officials/individuals in cases of health and safety emergencies, e.g., suicide, alcohol/substance abuse in minors, acts of violence

FERPA • Some things we should not do: • Post a list of student grades by name, SSN or Student ID# • Leave graded tests/papers in a stack for students to sort through and pick up • Discuss a student’s education records with others (education officials or not) where you might be overheard • Release student information by phone or email without first verifying the identity of the recipient and having the student’s permission to do so if necessary • Dispose of old student records in the normal trash

FERPA • Other examples of possible FERPA violations and Accreditation violations • Not keeping student files locked and secured or in public view • Keeping “Unofficial Files” to circumvent FERPA • Having a process for addressing and resolving student grievances/complaints • Failing to list accrediting agency’s contact information for students in case of grievances/complaints • Providing a copy of all such grievances/complaints to the President’s office

FERPA Questions 1. Under FERPA, when college students turn 18, the privacy rights in their education records – previously held by their parents – revert exclusively to them.

FERPA • Question • Under FERPA, when college students turn 18, the privacy rights in their education records – previously held by their parents – revert exclusively to them. • Answer • False – any age if in a postsecondary school • - does not provide students exclusive rights • - health and safety • - violent crimes/sexual offender

FERPA Questions 2. Under FERPA, parents who claim a college student as a dependent for U.S. federal income tax purposes cannot be denied access to the student’s education records.

FERPA Questions 2. Under FERPA, parents who claim a college student as a dependent for U.S. federal income tax purposes cannot be denied access to the student’s education records. Answer False – key word is “may” disclose to parents - FERPA permits the release, does not mandate it

FERPA Questions 3. Professors and administrators may have access to student records for any reasonable purpose, if they maintain a full and complete record of such access.

FERPA Questions 3. Professors and administrators may have access to student records for any reasonable purpose, if they maintain a full and complete record of such access. Answer False – education officials must have a legitimate educational interest. A faculty advisor could have lawful access to an advisee’s education record for the purpose of providing appropriate academic advising. A preceptor may not.

FERPA Questions 4. FERPA precludes college officials from discussing any personal knowledge or observations about a student with prospective employers or other third parties, without the student’s written consent.

FERPA Questions 4. FERPA precludes college officials from discussing any personal knowledge or observations about a student with prospective employers or other third parties, without the student’s written consent. Answer False – Personal knowledge or observation would not be considered an educational record and would not be protected under FERPA.

FERPA Family Educational Rights and Privacy Act