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FERPA FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT. FAMIS CONFERENCE Mari M. Presley, Assistant General Counsel Florida Department of Education June 12, 2012. Rights Protected by FERPA. Students and/or Parents have right to ACCESS education records - PowerPoint PPT Presentation
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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
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