Family Educational Rights and Privacy Act (FERPA)

Family Educational Rights and Privacy Act (FERPA) Presented by Albert Gonzales, Esq. New Mexico Public Education Department April 18, 2008

FERPA Law • Federal Statute: 20 U.S.C. Sec. 1232(g) • Federal Regulations: 34 CFR Part 99 • State Rules: 6.31.2.13(L) NMAC • IDEA Regulations: 34 CFR Secs. 300.610-627

Examples of FERPA Applications • Distance Learning (6.30.8.8(E)(8) NMAC) • Students with HIV (6.12.2.10(B) NMAC) • Records & Reports in Standards for Excellence (6.30.2.10 (D) NMAC) • Standards of Professional Conduct (6.60.9.9(B)(1) NMAC)—Teachers must maintain confidentiality of records according to FERPA

Parent Rights Granted under FERPA • Right to inspect & review education records (99.10) • Right to seek to amend education records (99.20) • Right to consent to disclosure of information from education records except as provided under FERPA (99.30)

For Students • Requires SEAs to have policies & procedures regarding the extent to which children are afforded rights of privacy similar to those afforded to parents • See 34 CFR Sec. 300.625.

Also For Students • If rights accorded to parents under Part B are transferred to students who reach age of majority (18 inNM) per 34 CFR Sec. 300.520, the rights regarding education records also transfers to the students.

To which educational agencies does FERPA apply? • Schools that receive funds under any program administered by the Secretary of Education of the U.S. Department of Education • See 99.1.

What are education records? • Records which— (1) contain information which is directly related to a student; and, (2) are maintained by an educational agency or by a party acting for the agency. (99.3). • IDEA uses the definition in FERPA. (34 CFR Sec. 300.611(b))

What does “record” mean? • Any information maintained in any way, including, but not limited to: • Handwriting • Print • Video or audio tape • Computer media • Film • Microfilm or microfiche

Exceptions to “Education Records” “sole possession records” that are • kept in the sole possession of the maker; • are used only as a personal memory aid; and, • are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

Exception Doesn’t Exclude . . . • The exception is not intended to exclude from the definition of “education records” detailed or comprehensive notes that record specific clinical, educational, or other services provided to a student, or that record that school official’s direct observations or evaluations of student behavior, including the student's success in attaining specified objectives.

Education Records under Part B of IDEA • Education records maintained by an LEA under Part B of IDEA are protected by both FERPA and the Confidentiality of Information provisions of Part B of IDEA. • A student’s medical or health records are “education records” subject to FERPA, if they are maintained by an LEA.

Disclosure of Records under FERPA • A parent or eligible (adult) student must • provide a signed and dated written consent, • before an LEA discloses personally identifiable information from the student’s education records, • unless consent is not required under FERPA or IDEA.

What is “Personally Identifiable Information”? • It 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 the student’s family. • A personal identifier such as a social security number or student number • A list of personal characteristics or other information that would make the student’s identity easily traceable

Directory Information An LEA may disclose directory information if has given public notice to parents & eligible students of: • The types of personally identifiable information that the LEA has designated as directory information • A parent or eligible student’s right to opt out • The period of time the parent or eligible student has to notify the LEA that he/she is opting out The above does not apply to disclosing directory information about former students. (99.37)

What is “Directory Information”? • Information not harmful or an invasion of privacy if disclosed • Typical information provided in a yearbook • Cannot include student identification numbers or social security numbers • For a complete list, see 99.3.

Annual Notification Each LEA must annually notify parents of students in attendanceof their rights under FERPA

Notification Must Include • Right to • inspect & review including procedures for doing so • request amendment • disclosures with exceptions • file a complaint with U.S. Dept. of Ed. • Statement that education records may be disclosed to school officials without consent

New IDEA Disclosure Provisions(34 CFR Sec. 300.622) Parental consent is not required before personally identifiable information is released to officials of participating agencies for the purpose of meeting a requirement of Part B with two exceptions.

The Two Exceptions. . . • Consent required if release is to officials of participating agencies providing or paying for transition services in accordance with 34 CFR Sec.300.321(b)(3) • Consent required if release is to officials of an LEA where a child is enrolled by a parent, or is going to enroll in a private school that is not located in the LEA of the parent’s residence

When Prior Written Consent Not Required Under FERPA (99.31) • To school officials with legitimate educational interests (defined in annual notification) • To schools in which a student seeks or intends to enroll • To federal, state, local educational authorities conducting an audit, evaluation or enforcement of educational programs

When Written Prior Consent Not Required Under FERPA (99.31) • In connection with financial aid, such as college loans • To parents of a dependent student • To organizations conducting studies on school’s behalf • To comply with a judicial order or subpoena (reasonable effort to notify)

When Written Prior Consent Not Required Under FERPA (99.31) • Directory information • In a health or safety emergency • To state and local officials in connection with serving the student under the juvenile justice system • Above exceptions relate to LEAs

Proposed FERPA Regulations • FERPA regulations are in process of being amended. • Comments on the proposed regulations will be accepted until May 8th. • To access the Federal Register Notice, go to http://www.ed.gov/legislation/FedRegister/proprule/2008-1/032408a.pdf

Inspection of Public Records Act • Grants right to review all public records that are not excluded under the Act • 14-2-5 – Purpose of Act • 14-2-6(E) – Definition of public records • 14-2-1 – Right to inspect; exceptions • 14-2-1(A)(12) – “as otherwise provided by law.” This means FERPA.

Enforcement Provisions • Parents and eligible (adult) students may file complaints with Family Policy Compliance Office • FPCO investigates complaints regarding violations of FERPA.

Enforcement Provisions • An organization or individual may file a signed, writtenstate-level complaint (34 CFR Secs. 300.151 through 300.152) alleging a violation of Part B of IDEA, including the Confidentiality of Information provisions.

Need Help? For technical assistance and advice to school officials contact: Family Policy Compliance Office U.S. Department of Education 400 Maryland Avenue, SW Washington, DC 20202-5920 Telephone (202) 260-3887 Fax (202) 260-9001

Further Information • For informal requests for technical assistance, send email to FERPA@ed.gov • Family Policy Compliance Office website: http://www.ed.gov/policy/gen/guid/fpco/index.html

Family Educational Rights and Privacy Act (FERPA)