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FERPA and Student Privacy in Records of University Research
ECURE
March 1, 2005
Richard Rainsberger, Ph.D.
Consultant, Education Records Law and
Privacy Issues
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FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT OF 1974
"A FEDERAL LAW DESIGNED TO
PROTECT THE PRIVACY OF EDUCATION
RECORDS AND TO ESTABLISH THE
RIGHT OF STUDENTS TO INSPECT AND
REVIEW THEIR EDUCATION RECORDS."
Family Policy Compliance Office [email protected]
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THE ESSENCE OF THE ACT
• COLLEGE STUDENTS, PAST AND PRESENT, MUST BE PERMITTED TO INSPECT THEIR OWN EDUCATION RECORDS.
• SCHOOL OFFICIALS MAY NOT DISCLOSE PERSONALLY IDENTIFIABLE INFORMATION ABOUT STUDENTS NOR PERMIT INSPECTION OF THEIR RECORDS WITHOUT WRITTEN PERMISSION OF THE STUDENT UNLESS SUCH ACTION IS COVERED BY CERTAIN EXCEPTIONS PERMITTED BY THE ACT.
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SOME KEY CONCEPTS
Written permission of student required to disclose
The exceptions to written permission Student's right to access their records Legitimate Educational Interest The “mays” and the “musts” of FERPA
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SOME KEY TERMS
Education Record Personally Identifiable Directory Information School Official
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WHAT IS AN EDUCATION RECORD? ANY RECORD, WITH CERTAIN EXCEPTIONS, MAINTAINED BY
AN INSTITUTION THAT IS DIRECTLY RELATED TO A STUDENT OR STUDENTS. FROM WHICH AN INDIVIDUAL STUDENT CAN BE PERSONALLY (INDIVIDUALLY) IDENTIFIED
THESE RECORDS INCLUDE: FILES, DOCUMENTS, AND MATERIALS IN WHATEVER MEDIUM (HANDWRITING, PRINT, TAPES, DISKS, FILM, MICROFILM, MICROFICHE, ELECTRONIC STORAGE) WHICH CONTAIN INFORMATION FROM WHICH STUDENTS CAN BE PERSONALLY (INDIVIDUALLY) IDENTIFIED.
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“PERSONALLY IDENTIFIABLE”
"PERSONALLY IDENTIFIABLE" MEANS DATA OR INFORMATION WHICH INCLUDES: (1) THE NAME OF THE STUDENT
(2) THE STUDENT'S CAMPUS OR HOME ADDRESS;
(3) A PERSONAL IDENTIFIER (SUCH AS A SOCIAL SECURITY NUMBER OR STUDENT NUMBER)
(4) A LIST OF PERSONAL CHARACTERISTICS OR OTHER INFORMATION WHICH WOULD MAKE THE STUDENT'S IDENTITY EASILY TRACEABLE
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WHAT AN EDUCATION RECORD IS NOT!! “SOLE POSSESSION” NOTES
LAW ENFORCEMENT UNIT RECORDS
RECORDS MAINTAINED EXCLUSIVELY FOR INDIVIDUALS IN THE THEIR CAPACITY AS EMPLOYEES RECORDS OF INDIVIDUALS WHO ARE EMPLOYED AS A RESULT OF
THEIR STATUS AS STUDENTS (WORK STUDY) ARE EDUCATION RECORDS.
MEDICAL TREATMENT RECORDS
ALUMNI RECORDS
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WHAT IS AN EDUCATION RECORD? (SUMMARY)IF YOU HAVE A RECORD THAT IS:
•MAINTAINED BY YOUR INSTITUTION
•PERSONALLY IDENTIFIABLE TO A STUDENT
•NOT ONE OF THE EXCLUDED CATEGORIES OF RECORDS…
THEN, YOU HAVE AN EDUCATION RECORD AND
IT IS SUBJECT TO FERPA
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DIRECTORY INFORMATION
• INFORMATION NOT NORMALLY CONSIDERED A VIOLATION OF A STUDENT’S PRIVACY
• THIS INFORMATION MAY BE RELEASED WITHOUT THE STUDENT’S WRITTEN PERMISSION.
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WHAT CAN DIRECTORY INFORMATION INCLUDE?
STUDENT’S NAME ADDRESS TELEPHONE NUMBER DATE/PLACE OF BIRTH MAJOR FIELDS OF STUDY PARTICIPATION IN
OFFICIALLY RECOGNIZED ACTIVITIES AND SPORTS
HEIGHT/WEIGHT OF ATHLETIC TEAM MEMBERS
DATES OF ATTENDANCE DEGREES AND AWARDS
RECEIVED MOST RECENT
EDUCATIONAL INSTITUTION ATTENDED
OTHER SIMILAR INFORMATION AS DEFINED BY THE INSTITUTION THAT WOULD NOT NORMALLY BE CONSIDERED AN INVASION OF A STUDENT’S PRIVACY
DIRECTORY INFORMATION MAY INCLUDE THE FOLLOWING STUDENT INFORMATION:
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WHAT CAN DIRECTORY INFORMATION INCLUDE?
CLASS SCHEDULE E-MAIL ADDRESS
CLASS ROSTERS PHOTOGRAPHS
DIRECTORY INFORMATION MAY INCLUDE THE FOLLOWING RECENT ADDITIONS TO STUDENT INFORMATION:
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WHAT CAN DIRECTORY INFORMATION INCLUDE?
RACE
GENDER
SOCIAL SECURITY NUMBER
TEST SCORES
GRADES GPA COUNTRY OF
CITIZENSHIP RELIGION
DIRECTORY INFORMATION CAN NEVER INCLUDE A STUDENT’S:
TERM PAPERS
THESES
DISSERTATIONS
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Must be defined as such by each institution.
If a data element isn’t defined as “directory information” it isn’t directory information and can only be released if the student’s written permission is obtained or the release can be justified under one of the exceptions to students’ written permission found in FERPA.
DIRECTORY INFORMATION
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Know what your institution identifies as directory information.
DIRECTORY INFORMATION
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“School Officials”A “SCHOOL OFFICIAL” CAN BE A PERSON: 1) EMPLOYED BY THE COLLEGE IN AN ADMINISTRATIVE, SUPERVISORY, ACADEMIC, RESEARCH, OR SUPPORT STAFF
POSITION (INCLUDING LAW ENFORCEMENT AND HEALTH STAFF PERSONNEL),
2) ELECTED TO THE BOARD OF TRUSTEES,
3) OR COMPANY EMPLOYED BY OR UNDER CONTRACT TO THE COLLEGE TO PERFORM A SPECIAL TASK SUCH AS THE ATTORNEY, AUDITOR, OR COLLECTION AGENCY,
4) OR STUDENT SERVING ON AN OFFICIAL COMMITTEE, SUCH AS A DISCIPLINARY OR GRIEVANCE COMMITTEE, OR ASSISTING ANOTHER SCHOOL OFFICIAL IN PERFORMING HIS OR HER TASKS.
SUMMARY: IF YOU ARE AN EMPLOYEE OF A UNIVERSITY, OR A COLLEGE TRUSTEE, YOU ARE A “SCHOOL OFFICIAL” FOR FERPA PURPOSES.
Don’t read the Small Print
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“LEGITIMATE EDUCATIONAL INTEREST”
THE DEMONSTRATED NEED TO KNOW BY THOSE OFFICIALS OF AN
INSTITUTION WHO ACT IN THE STUDENT’S EDUCATIONAL
INTEREST, INCLUDING FACULTY, ADMINISTRATION, CLERICAL
AND PROFESSIONAL EMPLOYEES, AND OTHER PERSONS WHO
MANAGE STUDENT RECORD INFORMATION.
FERPA DOES NOT DEFINE “LEGITIMATE EDUCATIONAL
INTEREST.” IT STATES THAT INSTITUTIONS MUST SPECIFY THE
CRITERIA FOR DETERMINING IT.
USUALLY IDENTIFIED AS A “CONTRACTED DUTY” OF THE SCHOOL
OFFICIAL
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REQUIREMENTS FOR COMPLIANCE
WHAT WE MUST DO...
PROVIDE ANNUAL NOTIFICATION TO STUDENTS OF THEIR FERPA RIGHTS
PROVIDE STUDENTS’ ACCESS TO THEIR EDUCATION RECORDS
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Subjects’Access to their Records
Do subjects of studies have a legal right to access their records?
YES…as long as the records are subject to FERPA and they have not waived their right of access.
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PROCEDURES AND STRATEGIES FOR COMPLIANCE
A. DISCLOSURE OF EDUCATION RECORD INFORMATION
SEE ATTACHMENT A
1. INSTITUTIONS MAY DISCLOSE EDUCATION RECORDS WITHOUT WRITTEN CONSENT OF STUDENTS TO THE FOLLOWING:
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Spouses’/Relatives’ Access to Students’ Records
Do spouses/relatives of students of research studies have a legal right to access those records?
You may release if they have the student’s written permission to access specific documents.
NO!!
Parents can show proof of dependency. (Last federal income tax return)
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So…
What would you do if you are conducting research that includes students as subjects?
SEE ATTACHMENTS B AND C
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So…
What about students’ research: the research data and the end product (dissertations, theses, term papers, journal articles)? SEE ATTACHMENT D
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So…What about…
Students’ Biometric Records (DNA, fingerprints, ocular or voice prints)?
Research Data found in a computer? (00001 100001111 00001 110001 1000 00001 110 0001 100 001000 1000011 1100011)?
External requests for research data? SEE ATTACHMENTS E & F
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So…What about…
What about faculty reusing student research papers in subsequent classes?
Does that fit within the definition of educational record?
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So…What about…
Can students use FERPA to restrict access to their own research, especially if faculty want to publish it?
Copyright or not?
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Your Decision Tree
Is it an education record?Is there a signed consent
from the student to release?May I release the
information without signed consent of the student?
Should I?
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States’ Open Records LawsOnly applies to public institutions
FERPA is the controlling law.
Directory information may be subject to review. Non-directory information under FERPA is not.
Usually exemptions granted for education records in university research in FOIA laws
(FOIA=Freedom of Information Act)
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States’ Open Records Laws
http://web.missouri.edu/%7Efoiwww/citelist.html
NO SPACES IN ABOVE URL
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To Contact Me…
Richard A. Rainsberger, Ph.D.ConsultantEducation Records Law and Privacy
330-364-6976
