Student Records

1. Student Records Overview of the Student Records Law, including recent changes to federal and state law, upcoming rulemaking, and records management issues. Maggi O’Sullivan Parker Deputy General Counsel Florida Department of Education June 2009

2. Getting Started . . . Role of the Department of Education Problems? Lawsuits? Angry Parents? Consult your friendly school board attorney. Regular Policy Review

3. The Federal Law • FEPRA - Family Educational Rights and Privacy Act or The Buckley Amendment of 1974 • 20 U.S.C. 1232(g) • Fed. Rules: 34 C.F.R Part 99

4. Florida’s Law • Section 1002.22, Florida Statutes • Rule 6A-1.0955, F.A.C.

5. CHANGES AHEAD • Revisions to FERPA Regulations • Revisions to Florida Law (Section 1002.22, F.S.) • Revisions to Florida’s rules

6. Revisions to FERPA Regulations 34 C.F.R. Part 99 Published in Dec. 2008 Effective 2009 Changes, updates, and clarifies regulations on student records.

7. Revisions to Florida Law • House Bills 7117 and 7119 Maintain basic rights and protections but remove most of the detailed language regarding definitions, procedures and exemptions • Planned revisions to Florida administrative rules to codify student records requirements.

8. Helpful Links on New Laws USDOE Family Policy Compliance Office http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html Florida House of Representatives HB 7117 and 7119 http://www.myfloridahouse.gov/

9. FERPA = Rights • Four Basic Rights of Students and Parents • Right of Access • Right of Waiver of Access • Right to Challenge and Hearing • Right of Privacy Plus: Entitled to receive notice of their rights under the law.

10. Parental Access to Records • Q: In the case of unmarried, estranged or divorced parents, who may have access to student records? • Distinction between custody status and status as parent under FERPA • Presumption: both parents have access

11. Federal Guidance 34 C.F.R. § 99.4 What are the rights of parents? An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.

12. Right of Privacy • Exceptions: When may data be disclosed without parental consent? • Most common exception: other school officials for a legitimate educational purpose.

13. “Legitimate Educational Interest” • Electronic recordkeeping poses new considerations for access and security. • School employees are not entitled to look at all student records, just those in which they have a legitimate educational interest • New FERPA regulations requires districts to have policies and methods to ensure that school employees obtain access to only those educational records for which they have a legitimate educational reason.

14. Electronic Access New requirement that agencies and institutions use reasonable methods to verify identity before disclosing student records to parents, school officials, or other parties. “Reasonable” = appropriate security measures such as PIN numbers or passwords and security appropriate to the level of data being provided.

15. Electronic Access and Disclosure 2 areas of concern: Internal access by school staff External disclosure to parents or 3rd parties Policies and Practices: Develop policies, protocols, security protections. Train and remind employees of policies. Use more than one verification method. Ensure safety of removable, portable devices such as laptops and flash drives.

16. Electronic Transfer of Data No blanket prohibition or USDOE guidance on using e-mails, but consider use carefully. Regardless of form, schools have obligation to ensure that data disclosed to third parties is not improperly re-disclosed. - written agreement - encryption - destruction or return of data

17. Electronic Access and Disclosure • Biometric records added to definition of “student record” Biometric information is based upon unique attributes of an individual, such as fingerprints, voice, face, or eyes, that can be measured and used for identification or verification. Examples include fingerprints, eye patterns, voice prints and facial recognition. 34 CFR §99.3 Recent use: Verification of student school lunch accounts in cafeterias. Other non-student uses: employee access to records, buildings or systems.

18. Directory Information • Current Florida definitions • Name • Phone Number, Address • Date/Place of Birth • Major • Academic, Sports and Other Activities • Weight and Height (Athletics) • Date and School Attended • Degrees and Awards Received

19. Directory Information • New categories that will be added: - e-mail address - grade level - photograph - enrollment status Q: Do districts have to release all categories of directory information? Q: Must districts release directory information to anyone or any entity that requests it?

20. Additional Protection of Students Situation: Protective Order, Witness Protection Program, Other Security Issues • Policy • Staff Awareness • Ch. 119 exemption for child of judge, law enforcement offices • Limits of Effectiveness

21. Changes to FERPA • 3rd parties such as contractors, consultants, or volunteers who have contracted with school/agency to perform services may have access consent, provided they are under control of school/agency and agree to be governed by FERPA regulations.

22. Changes to FERPA • Health and Safety Emergencies • Response to Virginia Tech. tragedy. Removes prior strict construction of the term “emergency.” Now defers more discretion to local officials to determine the “totality of the circumstances” when evaluating a threat to a student or others.

23. The Public Records Law Ch. 119 • Student records are exempt from disclosure • Some, but not all, elements of employee data are subject to public disclosure • OPEN: Name, address, transcript, job history, job application. • CLOSED: Evaluations (for one year), medical and financial data, complaints (while the investigation is active)

24. Video Recording • Videotaping students: consider purpose and use of video. Is it instructional (student record) or evidence of crime (law enforcement records) • Videotaping teacher performance or classroom activities: may come under FERPA and may be shared with instructional personnel for legitimate educational purposes. • Recommended practice: include notice of potential taping in student handbook or class newsletter.

25. Records Retention Schedules • Florida Department of State Records Retention Schedule for Public Schools Schedule GS-7 http://dlis.dos.state.fl.us/recordsmgmt/gen_records_schedules.cfm

26. School Health Records • Q: What are health records? • Q: How and when can a school share immunization records? • November 2008 Federal Guidance: http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/hipaaferpajointguide.pdf

27. Useful Links Current FERPA Regulations http://www.ed.gov/policy/gen/reg/ferpa/index.html USDOE Guidance on FERPA from the Family Compliance Office http://www.ed.gov/policy/gen/guid/fpco/index.html Pinellas Student Education Records Policy http://www.pinellas.k12.fl.us/records/files/F8744482437242A3BFF5F4884E788B4B.pdf

28. Follow Up Question and Answer Session Submit Questions to dbweias@fldoe.org Or call (850) 245-0400