Family Educational Rights and Privacy Act

(FERPA)
Statute: 20 U.S.C. § 1232(g)

Regulations: 34 CFR Part 99

Baron Rodriguez
Allison Camara
JULY18-22, 2011
PTAC
 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”).
 Key definitions that apply to the regulations

 Education Records
 Personally Identifiable Information
 Directory Information
 Parent
 Student
 Record
 “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.
 “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.
 “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.”
 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;
 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.
 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
 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.
 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.
 Student

“Student” means any individual:

◦ who is or has been in attendance at a school; and

◦ regarding whom the school maintains education records.

 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
 FERPA Rights

 Parents

 Students
 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
 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”).
 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.
 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).
 So.. What is 99.31?

 §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.

 FERPA Processes

Annual Notification
Inspection and Review of Education Record
 Amending Education Records
Disclosure
Recordkeeping
Redisclosure
Audit or Evaluation
Health and Safety Emergencies
 § 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
 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:

oSpecification of criteria for determining who are school officials;

and
oWhat constitutes a legitimate educational interest.
 Annual Notification
Examples
 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
 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.

 Inspection and Review – State
Education Agencies

 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.
 Inspection and Review FAQs
§ 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.
 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.
 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.
 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.
 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
 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
 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.
 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.
 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).
 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.
 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
 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

 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.
 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).
 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.

 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.
 §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.
 Proposed Changes to FERPA

 Stronger enforcement
 Ensuring student safety
 Promote wise investment of taxpayer funds in educational programs
 Promote effectiveness research
 FERPA: Ensuring Student Safety
Limited Directory Information

EFFECT OF
CURRENT PROPOSED
PROPOSED
INTERPRETATION INTERPRETATION
CHANGE

Clarify that
Educational
Gives entities
agencies may
greater discretion
specify that
None in releasing
Directory
Directory
Information will be
Information
disclosed only for
specified purposes.

44
 FERPA: Ensuring Student Safety
Student ID Badges

EFFECT OF
CURRENT PROPOSED
PROPOSED
INTERPRETATION INTERPRETATION
CHANGE

Unclear whether Clarify that a school

may require a
Allows schools
students can be
student to wear an the discretion to
required to wear
ID badge that require the
ID badges if they
exhibits information wearing of ID
opt out of that has been badges by all
directory designated as
students.
information. directory information.

45
 Contact Information

Family Policy Compliance Office Privacy Technical Assistance Center

(202) 260-3887 Telephone (855) 249-3072 Telephone

privacyTA@ed.gov Email
FERPA@ed.gov Email
(202) 260-9001 Fax (855) 249-3073 Fax

Website:
Website:
http://www2.ed.gov/policy/gen/guid http://nces.ed.gov/programs/ptac/
/fpco/index.html