FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT

FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT I. Source of Authority Because of the growth of record keeping and the related privacy concerns, Congress enacted the Family Educational Rights and Privacy Act in 1974 ( FERPA ). FERPA essentially establishes procedures and guidelines for parent and student access to student records, and further restricts third-party access to those records. A summary of this legislation can be reviewed on the Cornwall website, www.cornwallschools.com. II. Covered Institutions FERBA applies to educational agency or institutions to which funds have been made available under any program administered by the Secretary of [Education] provided that: The educational institution provides educational services or instruction to students; or The educational agency is authorized to direct and control public elementary or secondary schools, or post secondary schools As such, FERPA does not render any activity unlawful, nor does it mandate that educational institutions provide specific rights, rather the statute is only applicable to the covered institutions and agencies described above. Thus, any institution or agency not qualifying need not comply with the FERPA requirements. However, as a practical matter, nearly all public and private educational institutions receive federal educational funding and are required to comply with FERPA. III. Covered Materials and Documents FERPA regulates access to education records. Subject to limited exceptions, the term includes records, files, documents and other materials which: Contain information directly related to a student; and Are maintained by an educational institution or agency FERPA and the applicable case law does exclude certain specific records from the definition of education record. They are as follows: 1

Sole possession notes¹ Law enforcement unit records SRO School law enforcement unit Employment records Treatment records of students 18 years of age or older Alumni or former student records Peer-graded classroom work and assignments Crime incident reports Injury claim forms Discipline charges against social clubs Student-teacher evaluations Statistical compilations Traffic records A student s education records, and any material contained therein which is personally identifiable, are confidential and may not be released or made available to persons other than parents or students without the written consent of such parents or students unless otherwise provided or required by law. The District may release, or could be required to release a student s records, without consent, if requested by: 1. Other school officials, including teachers within the District who have legitimate educational interests, including the educational interests of the students for whom consent would otherwise be required. 2. Officials of another school in which the student seeks or intends to enroll, if the parents or student are notified of the transfer of records, are given a copy if they desire one, and have an opportunity for a hearing to challenge the content of the record. 3. Authorized representatives of certain designated Federal and State agencies, including State educational authorities, for the purpose of the audit and evaluation of Federally supported programs, or in connection with the enforcement of Federal legal requirements. 4. In connection with a student s application for or receipt of financial aid. ¹ 20 U.S.C. 1232g(a)(4)(B)(I) defines this term as records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and are not accessible or revealed to any other person except a substitute. An example of a sole possession record would be a teacher or counselor who observes a student and takes a note to remind himself or herself of the student s behavior so long as he or she does not share the note with anyone else. 65 Fed. Reg. 41,856 (2000). Another example would include a separate confidential file which is maintained by a single individual and which is not disclosed to any other party. 2

5. State and local authorities to which such information is specifically required to be reported or disclosed pursuant to state statutes concerning the juvenile justice system. 6. Organizations conducting certain educational studies, where such studies are conducted in such a manner that students whose records are used cannot be identified by other persons, and where such records will be destroyed when no longer needed. 7. Accrediting organizations, in carrying out their functions. 8. Parents of a dependent student as defined by the Internal Revenue Code. 9. In an emergency, to appropriate persons, where the knowledge is necessary to protect the health or safety of the student or other persons. 10. Pursuant to court order or subpoena, after notification to the parents or student, unless such notification is barred by the issuing Court. Certain information, known as directory information may be released without consent. This information is general data about a student, and is not considered harmful or an invasion of privacy if disclosed. A school district must publish an annual notice regarding what directory information it will disclose, and give parents an opportunity to opt out. Directory information may include the following: the student s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, alumni information and the most recent previous educational agency or institution attended by the student. IV. Parental and Student Rights in General FERPA provides five general rights for the benefit of parents and students. 1. Educational Institutions must inform parents and students (on an annual basis) of their rights afforded under FERPA. 2. Parents and students are entitled to review and inspect student educational records relevant to the student; 3. Parents and students may challenge the content of any education record which the party believes is inaccurate; 4. FERPA prevents the disclosure of personally identifiable information, with limited exceptions, in the absence of parental or student consent; 5. FERPA permits parents and students to file complaints with the Family 3

Policy Compliance Office to assure protection of the rights afforded under The statute. FERPA rights apply to parents of minor children and students who are 18 years old or older. 1. As a general matter, FERPA affords parents of minor children who are not attending a post-secondary institution the right to inspect education records. The Federal Regulations define the term parent as 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 a guardian. A foster parent is included within this definition. The case law interpreting this definition has granted grandparents, relatives, and even close friends who have taken on a parental relationship the right of access. 2. In 2000, the Family Policy Compliance Office expanded the definition of parent to include a step parent who lives with the child on a day to day basis. A step parent who does not live with the child on a day to day basis has no FERPA rights. This change in policy was by unpublished opinion letter, not by regulatory change. 3. With regards to Non-Custodial or Joint Custody situations, educational institutions are required to give full rights under FERPA to either parent unless the institution is provided with a court order, statute, or legal document which explicitly revokes the right of a parent. 4. Once a student turns 18 years of age, the parents lose their rights under FERPA as those rights then transfer to the student. Also, once a student begins attending a post-secondary institution, even if he/she is under 18, the parents lose their rights under FERPA as enrollment in a post-secondary institution triggers a transfer of rights to the student. V. Specific Rights to Records Access 1. What can students see in their record according to FERPA? Do the guidelines established by the College Board change these rights? FERPA provides that a parent or student must be permitted the option of reviewing and inspecting the student s education records. Included within this right is the right to have the educational institution respond to requests for explanation of records. The right to request information does not require that the student or parent be given copies of explanations, unless specific language in the Act applies to the relevant record. 4

FERPA grants a broad right of inspection. The general principle is that parents and students are permitted inspection for education records. The right of inspection is limited to whether the material falls within the definition of education record as is defined above under Part III of this outline. Where the education record contains information which is open to inspection, and information which is not, the institution is free to redact the relevant portions which should not be disclosed. With respect to guidelines established by the College Board, there is no provision in FERPA which would permit an educational institution the power to supercede the requirements of the Act without the prior consent of the parent or student. 2. Must college recommendations be open to students if they are kept in the permanent record? If a student was required to waive access to such recommendations, the District does not have to provide such records to the student. If the student did not waive his/her right to access such recommendations, then the student has the right to see the recommendations. 3. Can students see their counselor or teacher recommendations while in high school after they graduate from high school? FERPA rights are not applicable to records which contain information relating to a person after such person is no longer a student. However, former students do have rights to inspect records taken when they were students at the institution. Thus to clarify, a former student would not have a right to inspect records which were collected by the educational institution pertaining to alumni, however, the student would have a right to inspect documents, relative to that student, which were compiled when the alum was a student. If the waiver discussed above was signed, then the District could still withhold the recommendation. 4. Is a written release of information required before we send a transcript to a college? Athletic team? Branch of the military? In certain circumstances, FERPA does not require that the educational institution acquire prior consent of the parent or student. Student information may be shared with officials of another school or college without the consent of the parent or student so long as the student intends 5

or is seeking enrollment in such school. This is an exception to the FERPA consent requirements. This requirement is subject to the school providing parents with annual notification of its practice or policy of sharing information with other institutions under these circumstances. With respect to athletic teams, educational institutions must be provided with consent prior to release of student records as the Federal Regulations do not provide any exception for athletic activities. With respect to military, the No Child Left Behind Act (NCLB) requires school districts to provide parents and legal guardians with an opportunity to request that a student s name, address and telephone number be withheld from institutions of higher education and military recruiters unless prior written parental consent is provided. A school district can provide simply a single opt-in or opt-out, or it can provide a menu approach. 5. Can counselors keep a separate, confidential file on a student? If so, for how long must the records be kept? The term education record does not include sole-possession notes. The material is not discoverable so long as the author does not share such notes with any other person and are in the sole possession of the author. (See Footnote No. 1 under Part III of this outline). Based upon our experience, it is recommended that confidential notes be maintained for a period of no less than 5 years. 6. Does anyone in the school have confidentiality? If so, to what extent? We recommend that you never tell or promise a student that you will keep confidential your conversations with them. One reason for this is that if they disclose information which you must report as a mandatory reporter, you will have no choice but to violate that promise. Guidance counselors do not have any confidentiality privilege under the law. Under Section 4508 of the New York Civil Practice Laws and Rules ( CPLR ), communications between social workers, who are registered with the Education Department, can not be required to disclose communications with a client, or the contents of any communication with the client. The statute requires that the communication and the advice given be transmitted in the course of the social worker s employment. 6

However, there are several case law and statutory exceptions to this privilege, including testimony at a juvenile delinquency hearing. The CPLR provides the same privileges to psychologists so long as the psychologist is registered as prescribed in the Education Law. 7. May the District withhold psychological testing protocols? Generally speaking, yes, as it is not an educational record of the student. However, if the parent/student needs to see the testing protocol in order to understand the student s educational records, you may need to provide it pursuant to FERPA, IDEA or Section 504. The Family Policy Compliance Office does not recognize the potential invalidation of the test as a satisfactory reason for withholding the testing protocol. VI. Release of Information 1. No Child Left Behind Act See information regarding military recruiters above. When a student transfers to a new school district, NCLB also requires that a school district send disciplinary records regarding suspensions and expulsions to the receiving school district. 2. What kind of information should be released if we are subpoenaed? In what format should it be presented? FERPA provides that information may be furnished in compliance with judicial orders and subpoenas. Also under New York law, subpoenas for documents should be signed by a Judge, not an attorney. The Act further requires that parents or students be notified of such orders prior to compliance by the institution. This is intended to provide the parent or student the opportunity to challenge such requests. Thus, the institution must provide the parent or student with a reasonable opportunity to respond to such demand prior to complying with such a request. If the judicial order or subpoena prohibits notice to the parent, the institution may not disclose its compliance with the demand. With respect to the form of disclosure, the institution should provide the information in the format required by the order or subpoena. 7

Anytime you are served with a subpoena related to your employment at the District, you should notify your supervisor. If there are any questions at all, contact our office. 3. Can we automatically include SAT/ACT scores on the transcript or do we need the written request of the student or parent? Transcripts are educational records, and as such, are protected under FERPA. Therefore, including the SAT/ACT scores on the transcript need not require additional consent since disclosure of the student s transcript already requires consent. 4. What information can counselors tell colleges beyond the information required on the application? Are we obligated to provide this information if asked? FERPA does permit the release of education records to colleges and universities without the consent of the parent or student. This is an exception to the consent rule, as was described above. However, it is advisable that consent be obtained from the parent or student should the college request information not required on the application. 5. Can parents refuse to allow counselors to talk to CPS workers? A school district has no authority to interfere with an investigation by Child Protective Services. Information demanded by judicial order or subpoena must be provided to the relevant investigating authority. Moreover, statute provides that school districts and their employees must cooperate with CPS investigations. VII. HIPAA 1. HIPAA (the Health Information Portability and Accountability Act) is a federal law that imposes new standards for the protection of individual health information. It is important to distinguish between HIPAA and FERPA (the Family Educational Rights and Privacy Act). Educational Records that are subject to FERPA are expressly exempted from HIPAA s coverage. 2. Therefore, the confidentiality and privacy of school health records that are part of the student s educational record are governed solely by FERPA. The passage of HIPAA does NOT change that in any way. 3. HIPAA does, however, affect the nature of the exchange of information from the student s health care provider TO the school. Previous informal 8

exchanges between health providers and school health staff are no longer permitted; explicit written authorization is required from the parent or guardian in order for information to flow to the school. For example, immunization records require such authorization. 4. The State Education Department has issued the following statement on its website regarding HIPAA: Within the school setting, FERPA continues to govern the exchange of health care information that is contained in the student s educational record. It is not necessary to obtain a release of information from a parent or guardian in order to share such information with school staff for the purposes of insuring the best and most appropriate care for a student. VIII. Law Enforcement 1. Generally speaking, a school district cannot provide FERPA protected information to local law enforcement unless it receives parental consent or unless one of the exceptions applies. 2. The most common exception applicable to local law enforcement is the emergency exception. In an emergency, information may be released to appropriate persons, where the knowledge is necessary to protect the health or safety of the student or other persons. This exception expires when the perpetrator is identified and apprehended. 3. Personal observations of District staff are not educational records, and thus can be communicated. 4. Local law enforcement is not covered by the law enforcement unit exception to educational records. A law enforcement unit is a unit within the District, which must keep separate records. 5. In order to be a law enforcement unit, the individual(s) must be officially authorized and designated to Enforce any local, State or Federal law or refer to the proper authorities a matter for enforcement of any local, State or Federal law, or Maintain the physical security and safety of the agency or institution. 6. A law enforcement unit record must meet all of the following criteria: the record must be created by the law enforcement unit, and 9

the record must be created for a law enforcement purpose (not a disciplinary purpose), and the record must be maintained by the law enforcement unit. 7. Information which is kept as both a disciplinary record and a law enforcement unit record constitutes an education record protected by FERPA. 8. Education officials can disclose education records to law enforcement unit personnel, but law enforcement unit personnel cannot then re-disclose that same information to local law enforcement unless parental consent is obtained or one of the exceptions applies. 10