FERPA, The Family Educational Rights and Privacy Act of 1974, as amended

1. FERPA, The Family Educational Rights and Privacy Act of 1974, as amended The Basics What’s New? NYSOBBA Conference June 10, 2013

2. A FEDERAL LAW DESIGNED TO PROTECT THE PRIVACY OF EDUCATION RECORDS, TO ESTABLISH THE RIGHT OF STUDENTS TO INSPECT AND REVIEW THEIR EDUCATION RECORDS, AND TO PROVIDE GUIDELINES FOR THE CORRECTION OF INACCURATE AND MISLEADING DATA THROUGH INFORMAL AND FORMAL HEARINGS."

3. To Whom Does the Law Apply? • Applies to currently enrolled students or • formerly enrolled students (but not to • applicants who never enrolled or deceased • students.) • Applies to all institutions that receive • Department of Education funds

4. What Rights does FERPA afford students? • The right to know what the institution has • designated as Directory Information and the • right to request suppression of the information • The right to know that persons designated as • school officials with the legitimate “right to • know” may access these records • Right to file a complaint with FPCO

5. What are education records? • Any record from which a student can be • personally identified AND which is • maintained by the institution regardless • of its form: handwritten, print, database, • disk, email, files, graded materials, class • lists, individual student class schedules, • financial aid or bursar records.

6. What is NOT an education record • Private advising notes in “sole possession”. • Law enforcement records created and • maintained by an agency for that purpose • Employment records – unless for student • employment (work study, wages, TAs, etc.) • Medical/psychological treatment records • (from a health or counseling center) • Alumni records – created after the student • has graduated or left the institution

7. What is Directory Information? (it may include the following) Name Major Address Adviser Email address College Telephone number Class Dates of enrollment Awards Enrollment status Honors (full or part time) Degrees

8. What cannot be directory information? Grades GPA Race/Ethnicity Gender Social Security Number Student ID Country of Citizenship Religion

9. Who can have access to education records? • The student (with some exceptions) • Any outside party that has the student’s • written consent • School officials with a legitimate educational • interest (as defined by the institution) • Parents of a dependent student as defined by • by IRS regulations (student is a dependent) • A person in response to a lawfully issued • subpoena or court order

10. When is prior written consent not required? • Lawfully issued subpoena or court order • School officials needing to fulfill professional • duties • Health or safety emergency • Audit of educational programs by a recognized • authority

11. What about parents? • Are considered to be “third parties” and do not • have an automatic right to student information • May release public/directory information • May not discuss specifics about a student

12. Guiding Principles for protection of Student • Information • You have a legal responsibility to protect the • confidentiality of student records • Curiosity does NOT EQUAL a legitimate • need to know • All institutions must assure security of student • information including physical security, • electronic security and disposition of records • according to appropriate retention schedules

13. What’s New in FERPA? There are no changes to the basic rights of students, HOWEVER…. Information from the student record can be disclosed without the student’s consent if a student is judged to present “an articulable and significant threat to the health or safety” of himself or others. It does NOT permit disclosure on a routine, non-emergency basis to law enforcement

14. Other changes….. • “In attendance” includes students in online • courses • Permits the return of a record to a provider or • creator of a record (e.g., suspected fraud) • Requires “reasonable methods” to ensure officials • have access ONLY to the records they need • Must use “reasonable methods” to authenticate • request prior to release of records (e.g. password) • “School officials” may include third parties under • contract that provide services the institution may • normally provide

15. Other changes…..cont’d • Allows release to organizations conducting • research studies…assuming protections • De-identified data may be released without • consent, however this data must not include • any data that “would allow a reasonable person • …who does not have personal knowledge of the • relevant circumstances, to identify the student • with reasonable certainty” • Confidentiality requests are in effect permanently • until rescinded by the student, even after the • student is no longer enrolled.

16. Other changes…..cont’d • Exception allowed in the case of a court order • to collect records relevant to an investigation • or prosecution of an act of domestic or • international terrorism (Patriot Act) • Exception to consent allowed under a community • notification concerning a student who is required to • register as a sex offender in the state (Campus Sex • Crimes Prevention Act) • The Clery Act requires institutions to inform the • accuser and the accused of outcomes of a school’s • disciplinary proceeding of an alleged sex offense

17. Other Changes…… • There are suggested responses for data • breaches and other unauthorized disclosures • Beginning in 2011: Allow disclosure of student • information for “effective research and evaluation • of educational programs”…but with appropriate • safeguards to protect against further disclosure and • to require destruction of data when no longer needed

18. Online Resource http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html Questions? Comments? Concerns?