FAMIS CONFERENCEMari M. Presley, Assistant General Counsel

Florida Department of EducationJune 12, 2012

Rights Protected by FERPA

Students and/or Parents have right to ACCESS education records

Personally identifiable education records and information are CONFIDENTIAL

ACCESS - Student Until a student is “eligible,” only the parents have the right of access. 20 USC § 1232(g)(d) and 34 CFR § 99.5

An “eligible student” is a student who has reached 18 or is attending a postsecondary institution.

ACCESS - ParentsEven where a student is “eligible,” student

records can be released to parents: If student is dependent (for tax purposes) on

one parent, PII can be released to either parent If there is an emergency and disclosure is

needed to protect health or safety of student or others

For postsecondary students, if student has violated law or policy of institution governing alcohol or controlled substances, if institution determines student has committed violation and student is less than 21 at time of violation

CONFIDENTIALITYGeneral Rule:

Personally Identifiable Student records are confidential and must not be disclosed without consent

CONFIDENTIALITYIs the record an “education record”Is the record “personally identifiable”Does the requestor have consent?Exceptions – disclosure without consent

“Education Records”Records that are maintained by an

educational agency and directly relate to a student, except:Personal memory aidsLaw enforcement recordsEducational Agency employment recordsPostsecondary health/treatment records of a student

over 18Peer-graded papers before they are collected and

recorded by a teacher34 CFR § 99.3

Personally Identifiable RecordsWhen is student data personally identifiable?

Contains directly identifying or specifically prohibited data;

Contains enough info that a reasonable person in the school community with no knowledge of the circumstances could identify the student with reasonable certainty; or

Targeted request

DIRECTLY IDENTIFIABLE OR PROHIBITED ELEMENTS

Student’s nameParents’ namesFamily Members’ namesAddress of Student or FamilyPersonal identifiers such as SS#, Student #,

or biometric recordDate of BirthPlace of BirthMother’s Maiden Name

ADDITIONAL MASKING REQUIREDEven if a record contains no directly identifiable

data and no prohibited elements, it may be personally identifiable.

Standard = Whether a reasonable person in the school community without knowledge of the relevant circumstances would be able to identify the individual student with reasonable certainty.

Masking Protocols should require concealing directly and indirectly identifiable education information

CONSENTIn writingSigned by Parent (or, if applicable, the student)

DatedSpecify the records to be disclosedState purpose of disclosureIdentify party/class of parties to whom the record may be disclosed

CONSENT34 CFR § 99.31(c), must use “reasonable methods” to identify and authenticate the identity of parents, students, school officials, and other parties to whom personally identifiable education records will be released.

Electronic consent is ok if it identifies and authenticates a particular person

Exceptions – School OfficialsDisclosure allowed to school officials,

including teachers, within the agency who have “legitimate educational interests.”

Outsourced entity permitted under certain circumstances (contractors, consultants, volunteers)Performs function for which agency would

otherwise use employeesUnder direct control of agencySubject to limitations on re-disclosure

Exceptions – School OfficialsAgency must use “reasonable

methods” to ensure that school officials obtain access to only those records in which they have legitimate educational interest

An agency that does not use physical or technological controls must ensure that its administrative controls are effective

Exceptions – Ed. OfficialsAuthorized representatives of:

Comptroller General of the U.S.Attorney General of the U.S.USDE SecretaryState and local educational authorities

DOESchool Districts/School PersonnelState Auditor General

Exceptions – Ed. Officials“Authorized Representative” = “any entity…designated

by a state or local educational authority …to conduct—with respect to a Federal- or State-supported education programs—any audit or evaluation…”

“Education Program” = “any program that is principally engaged in the provision of education, including, but not limited to, early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, and any program that is administered by an educational agency or institution.

Exceptions – Ed. Officials

To designate an “authorized representative,” an agency must have a written agreement that meets the requirements of 34 CFR § 99.35

EXCEPTIONS: TransfersSchools may disclose records/info to

another school, school system, or postsecondary institution where student seeks or intends to enroll, or where student is already enrolled, for purposes relating to the transfer.

Note: the new school has no special authority to disclose to the old school. The new school can: 1) ask for records from the old school; 2) disclose directory information to the old school; 3) obtain consent from parent to disclose info to the old school

EXCEPTIONS – Financial AidThe disclosure is in connection with financial aid for which the student has applied or which the student has received, if the info is necessary for such purposes as to (i) determine eligibility; (ii) amount; (iii) conditions; or (iv) enforcement.

EXCEPTIONS: ResearchConducting study for, or on behalf of

educational agency toDevelop, validate, or administer predictive

tests;Administer student aid programs; orImprove instruction

Agency not required to initiate study or agree/endorse it to authorize the study

EXCEPTIONS: ResearchStudy conducted in a manner that protects

confidentiality and limits re-disclosurePersonally identifiable info destroyed Written Agreement

Purpose, scope, duration of studyPermits use of records only for stated

purposeMust protect confidentiality and limit re-

disclosureDestroy records by date certain

EXCEPTIONS: Order or SubpoenaJudicial Order or Lawfully issued SubpoenaRequires notice to parent or eligible student

Beware of inadvertent disclosures in electronic disclosures/metadata.

EXCEPTIONS - OtherAccrediting OrganizationsParents of a Dependent StudentHealth and Safety EmergencyDJJDirectory Information

Subject to annual notice requirements/opt out

EXCEPTIONS - OtherDisciplinary Proceedings – institution of postsecondary education may disclose the outcome of proceeding to alleged victim where there are allegations of violent crime or non-forcible sex offense

Registered Sex Offenders – where school is notified under 42 USC 14071 that a student (even minor) is registered sex offender, information may be disclosed.

Contacts and Resources Miki Presley, Assistant General Counsel,

Department of Education: (850)245-9426; Mari.Presley@fldoe.org

USDE Guidance on FERPA from the Family Compliance Office: http://www.ed.gov/policy/gen/guid/fpco/index.html

Government in the Sunshine Manual: http://myfloridalegal.com/sun.nsf/manual