What materials are considered “educational records?”

The U.S. Congress has defined “educational records” as records, files, documents, or any other materials that (1) contain information related to the student; and (2) are maintained by an educational institution or by a person acting on behalf of such an institution.[1] While the definition is broad, the legislation spells out what material is excluded from the definition. Under the Act, teachers or other school employees maintain a record in their sole possession is not considered an educational record. In addition, records of law enforcement authorities in the school, records of a student who is eighteen years or older that are maintained by a physician, psychiatrist, psychologist, or records connected with the treatment of a student do not fall under the definition.[2]

What are the rights of parents and students to access educational records?

Under FERPA, parents and students have the right to access their educational records, subject to a few limitations. Parents may exercise these rights while the student is a child, and the right extends to the student once he or she turns eighteen.[3]

Nevertheless, at this stage, parents still have the right to access the records without consent from the student, provided the student is listed as dependent on a parent’s federal income tax return.[4] Under the statute, each school must develop appropriate procedures for granting requests by parents for educational records within a reasonable time frame, not to exceed forty-five days.[5] In addition, the U.S. Department of Education (DOE) calls for schools to respond to reasonable requests for explanations or interpretations of the records within a reasonable time.[6] If circumstances prevent parents or eligible students from exercising their right to access the records, the school must either provide the parent or student copies of the requested documents or make alternative arrangements for them to review the education records.[7] Finally, the regulations prohibit the school from destroying records if there is an outstanding request for them.[8]

There are two important limitations to this right of review. First, if information about another student is on the educational record, the parent can review only the portion of the record about his or her child.[9] Second, while non-custodial parents generally can review their child’s records without consent from the student or other parent, a school must deny such a request if there is a court order, state statute, or legally binding document explicitly revoking the right.[10]

How do parents and students request to amend students’ educational records?

If a parent believes that his or her child’s educational records are inaccurate, misleading, or violate students’ rights to privacy, the parent may request that the school amend the record.[11]

The school must decide whether to move forward with this request within a reasonable time.[12] If it opts not to carry out the request, it has to inform the parent or eligible student of its decision and their right to an informal hearing to contest the decision.[13] DOE has set forth minimum requirements for the conduct of such a hearing. The school must hold the hearing within a reasonable time after the request and notify the parent or student of the date, time, and place, reasonably in advance of the proceeding.[14] While an individual from an educational agency or institution may preside over the hearing, he or she must not have a direct interest in the outcome of the case.[15] In terms of the hearing itself, DOE requires that the contesting party must have a full and fair opportunity to present evidence relevant to the issue at hand.[16] The regulations provide that parents or eligible students have the right to be represented by an individual at his or her expense, including an attorney.[17] As with other administrative proceedings, the hearing officer can only consider evidence presented during the hearing.[18]

If the hearing officer decides in favor of the parent or eligible student, the school must amend the record accordingly and inform the requesting party of this decision.[19] On the other hand, if the hearing officer decides that the educational record is not inaccurate or misleading, parents have the right to put forth a statement in the record commenting on the contested information and why he or she disagrees with the decision of the school.[20] The school has to keep the statement in the record as long as the record is maintained and must disclose the statement whenever it discloses the record to which the statement refers.[21]

When can a school disclose information regarding your child’s educational records?

Generally, schools cannot disclose to third party information about the student from the educational records without signed and written consent from the parent or the eligible student.[22] The signed and dated written consent may include a signature in electronic form. It identifies the person giving the electronic consent and indicates their approval of the information contained within the consent.[23] The written consent must specify which records are to be disclosed, state the reason for the disclosure, and identify the individual or organization to which the disclosure is being made.[24] The school is obligated upon request to provide parents or eligible students with copies of the records that are to be disclosed.[25]

When can a school disclose information without parental or student consent?

While FERPA provides extensive confidentiality protections for parents and students concerning their educational records, several exceptions permit the school to disclose the records without prior consent. For example, the school can disclose information to school officials having a legitimate educational interest in reviewing the record.[26] School officials having such an educational interest include teachers and school employees who work directly with the student and attorneys for the school district.  The right to disclosure may also extend to outside consultants, contractors, volunteers, and other parties that have contracted with the school provided they (1) perform a service for which the school would otherwise use employees; (2) are under the direct control of the school in the use and review of the records; and (3) will not disclose the information to an unauthorized party.[27] Regardless of the request's source, the school must take appropriate measures to ensure that these parties review only those records in which they have a legitimate educational interest.[28]

The school does not need consent when disclosing information to state and local officials who are using the records to conduct audits, evaluations, and compliance reviews of specific educational programs.[29] The school can also disclose to organizations contracting with the school to develop and administer predictive tests, administer aid programs, and improve classroom instruction.[30] Under the statute, the term “organizations” includes federal, state, and local agencies and independent organizations.[31]

Congress has nevertheless imposed some restrictions to ensure these organizations are properly using the record.  First, the written agreement between the school and the organization must specify the purpose, scope, and duration of the studies, the information that is to be disclosed, and contain assurances from the organization that it uses the records only for its intended purpose.[32] Second, when conducting the studies, only representatives of the organization with a legitimate interest in the information can access the records.[33] Finally, once the organization completes the study, it must destroy or return the school all personally identifiable information.[34] To ensure that schools comply with these requirements, the U.S. Department of Education has the authority to prohibit an institution from disclosing information to a third-party organization for five years if it decides that the school violated the provisions outlined above.[35]

If a student intends to enroll or transfer to another school in a different district, the “receiving school” may access the educational records from the “sending school” without parental or student consent unless there is a board policy prohibiting the transfer of records. However, under Connecticut law, the receiving school must send written notification to the sending school when the student enrolls there. The sending school then has ten days after the written notification to send all the student’s educational records to the receiving school.[36] If the sending school does disclose confidential information under these circumstances, it must make a reasonable attempt to notify the parent or the student at their last known address.[37] However, schools do not have to carry out this notification task if (1) the parent or student initiated the disclosure, or (2) the school specifies a policy in its annual notification of forwarding a student’s records to the receiving school when that student enrolls there.[38] In any event, the school has to provide copies of the disclosed records to the parent or student and an opportunity for a hearing if he or she wants to amend the records.[39]

School officials may disclose information under a court order or subpoena.[40] In doing so, the school has to make reasonable attempts to notify the parent or student about the order or subpoena in advance of the disclosure, so the parent or student has an opportunity to challenge the subpoena or court order.[41] On a related note, if the school is defending or pursuing legal action by or against a parent, it can disclose relevant student records without a court order, subpoena, or prior parental or student consent.[42] Similarly, the school can disclose student information to state and local authorities without written consent if the disclosure is related to the juvenile justice system’s ability to serve that student. A particular state statute permits such an action.[43] If the pertinent state statute was adopted after November 19, 1974, the authorities requesting the student records must certify in writing to the school that they will not disclose the information to any party that is not authorized by state law.[44] The school can also disclose confidential information in emergencies if the information is necessary to protect the health and safety of the student or other individuals.[45] Parents should be aware that the school has the statutory authority to disclose confidential student records to teachers and school officials within the school and at other schools if they have a legitimate interest in the student's behavior. The statute also permits the school to disclose information to any other individual whose knowledge of the information is necessary to protect the student and others.[46] Finally, the school can disclose “directory information” without consent if it has provided public notice to parents or eligible students attending the school.[47] “Directory information” means any information in an educational record of the student that would not generally be harmful or an invasion of privacy if disclosed. Examples of directory information include the student’s name, address, phone listing, e-mail address, photograph, date, and place of birth, major field of study, grade level, enrollment status, dates of attendance, participation in activities and sports, degrees, honors and awards received, etc.[48] DOE has outlined requirements for what type of information must be in the public notice.  First, the notice has to contain personally identifiable information that the school has designated as directory information. Second, the school has to spell out the parent’s or the eligible student’s right to refuse to let the school disclose such information and the period of time within which he or she has to notify the school.[49]

What can I do if my child’s school is violating a provision of FERPA?

If a parent or eligible student believes that the school has violated the Act, he or she can file a written complaint with the Family Policy Compliance Office, which is within the U.S. Department of Education.[50]

A parent or student must file the complaint with the Office within 180 days of the alleged violation or the date that he or she knew or should have known about the alleged violation.[52] In the complaint itself, the filing party has to spell out the underlying facts that led the party to believe that a violation occurred.[53]

Once the complaint has been filed, the Office will notify the complainant and the school if it decides to investigate the alleged violation.[54] In terms of the notice to the school, the Office has to include the substance of the allegations and direct the school to submit a formal written response and other relevant information within a specified period of time.[55] If the Office decides that more information is necessary before moving forward in the investigation, it may request the parties to submit further written or oral information.[56]

After the investigation, the Office will send both the complainant and the school written notice of its findings and the reasons for its decision.[57] If the Office decides the school violated a provision of the Act, it must spell out in the written notice the specific steps the school has to take to comply with the legislation and give the school a reasonable time frame for voluntary compliance.[58] However, if the school still refuses to comply, the DOE is authorized to take any available legal action, including withholding payments to the school, compelling compliance through a cease and desist order, or terminating any funding granted to the school.[59]

What are some other obligations of the school?

Aside from the school privacy responsibilities mentioned above, the school must also notify parents or eligible students annually about the various rights and procedures outlined in the Act. The notice must inform parents and eligible students about rights and procedures to access student records, amend the information within the records, and notify the U.S. Department of Education if they believe that a school has violated the Act. In addition, the notice must inform parents that schools cannot disclose information without consent unless such disclosure falls within one of the exceptions mentioned above.[60] Finally, the school must specify criteria for determining who constitutes a “school official” and what constitutes a “legitimate educational interest” if it has a policy of allowing such individuals to access student records without consent.[61]

If you require our assistance in ensuring the integrity of the education of your child, contact Maya Murphy today. Our education law attorneys serve all of Fairfield County, including Westport, Stamford, Norwalk, Darien, Greenwich, and work in Manhattan's surrounding areas. Call 212-682-5700 for our New York locations of 203-221-3100 for our Connecticut office.

Contact an Experienced Education Law Attorney

Our attorneys have years of experience representing education law clients in the states of New York and Connecticut. With offices located in New York City and Westport, we strive to provide large firm service while maintaining the small firm attention and accountability you deserve.  us today for assistance with your FERPA questions. Call 212-682-5700 for our New York offices or 203-221-3100 for our Connecticut office.

 

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[1] 20 U.S.C. § 1232g(4)(A)(i)-(ii) (2010).
[2] Id. § 1232g(4)(B).
[3] Id. § 1232g(d).
[4] Id. 20 U.S.C. . § 1232g(b)(1)(H).
[5] 34 C.F.R. § 99.10(b) (2010).
[6] Id. § 99.10(c).
[7] Id. § 99.10(d)(1)-(2).
[8] Id. § 99.10(e).
[9] Id. § 99.12(a).
[10] Id. § 99.4.
[11] Id. § 99.20(a).
[12] Id. § 99.20(b).
[13] Id. § 99.20(c).
[14] Id. § 99.21(a).
[15] Id. § 99.22(c).
[16] Id. § 99.22(d).
[17] Id.
[18] Id. § 99.22(f).
[19] Id. § 99.21(b)(1)(i)-(ii).
[20] Id. § 99.21(2).
[21] Id. § 99.21(c)(1)-(2).
[22] Id. § 99.30(a).
[23] Id. § 99.30(d)(1)-(2).
[24] Id. § 99.30(b)(1)-(3).
[25] Id. § 99.30(c).
[26] Id. § 99.31(1)(i)A).
[27] Id. § 99.31(B)(1)-(3).
[28] Id. § 99.31(ii).
[29] Id. § 99.31.
[30] Id. § 99.31(6)(i)(A)-(C).
[31] Id. § 99.31(6)(i)(v).
[32] Id. § 99.31(C)(1)-(3).
[33] Id. § 99.31(C)(3).
[34] Id. § 99.31(C)(4).
[35] Id. § 99.31(6)(i)(iv).
[36] 2000 Conn. Pub. Acts. 00-220 § 1.
[37] 34 U.S.C. § 99.34(a)(1).
[38] Id. § 99.34(a)(1)(i)-(ii).
[39] Id. § 99.34(a)(2)-(3).
[40] Id. § 99.31(9)(i).
[41] Id. § 99.10(9)(ii).
[42] Id. § 99.31(9)(iii)(A)-(B).
[43] Id. § 99.38(a).
[44] Id. § 99.38(b).
[45] Id. § 99.31(10).
[46] Id. § 99.36(b)(1)-(3).
[47] Id. § 99.31(11).
[48] Id. § 99.3(a).
[49] Id. § 99.37(1)(2)-(3).
[50] Id. § 99.63.
[51] Id. § 99.60(b)(1)-(2).
[52] Id. § 99.64(c).
[53] Id. § 99.64(a).
[54] Id. § 99.65(a).
[55] Id. § 99.65(2).
[56] Id. § 99.66(a).
[57] Id. § 99.66(b).
[58] Id. § 99.66(c)(1)-(2).
[59] Id. § 99.67(a)(1)-(3).
[60] Id. § 99.7(2)(i)-(iv).
[61] Id. § 99.7(a)(3)(iii).