Recently many questions have arisen concerning the Family Educational Rights and Privacy Act (FERPA), the federal law that protects the privacy of students' education records. The Department (US Department of Education) wishes to clarify what FERPA says about postsecondary institutions sharing information with parents.
At the K-12 school level, FERPA provides parents with the right to inspect and review their children's education records, the right to seek to amend information in the records they believe to be inaccurate, misleading, or an invasion of privacy, and the right to consent to the disclosure of personally identifiable information from their children's education records. When a student turns 18 years old or enters a postsecondary institution at any age, these rights under FERPA transfer from the student's parents to the student. Under FERPA, a student to whom the rights have transferred is known as an "eligible student." Although the law does say that the parents' rights afforded by FERPA transfer to the "eligible student," FERPA clearly provides ways in which an institution can share education records on the student with his or her parents.
While concerns have been expressed about the limitations on the release of information, there are exceptions to FERPA's general rule that educational agencies and institutions subject to FERPA may not have a policy or practice of disclosing "education records" without the written consent of the parent (at the K-12 level) or the "eligible student."
Under FERPA, schools may release any and all information to parents, without the consent of the eligible student, if the student is a dependent for tax purposes under the IRS rules.
SOURCE: U.S. Department of Education FAQ (02/19/2009)
Can a school disclose information to parents in a health or safety emergency?
The Department interprets FERPA to permit schools to disclose information from education records to parents if a health or safety emergency involves their son or daughter.
Another provision in FERPA permits a college or university to let parents of students under the age of 21 know when the student has violated any law or policy concerning the use or possession of alcohol or a controlled substance.
Additionally, under FERPA, schools may disclose information from "law enforcement unit records" to anyone - including parents or federal, State, or local law enforcement authorities - without the consent of the eligible student. Many colleges and universities have their own campus security units. Records created and maintained by these units for law enforcement purposes are exempt from the privacy restrictions of FERPA and can be shared with anyone.
Nothing in FERPA prohibits a school official from sharing with parents information that is based on that official's personal knowledge or observation and that is not based on information contained in an education record. Therefore, FERPA would not prohibit a teacher or other school official from letting a parent know of their concern about their son or daughter that is based on their personal knowledge or observation.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a law passed by Congress intended to establish transaction, security, privacy, and other standards to address concerns about the electronic exchange of health information. However, the HIPAA Privacy Rule excludes from its coverage those records that are protected by FERPA at school districts and postsecondary institutions that provide health or medical services to students [Treatment records, with strict exceptions involving written consent of student and health and safety questions*]. This is because Congress specifically addressed how education records should be protected under FERPA. For this reason, records that are protected by FERPA are not subject to the HIPAA Privacy Rule and may be shared with parents under the circumstances described above.
In all of our programs here at the Department of Education, we consistently encourage parents' involvement in their children's education. FERPA is no exception. While the privacy rights of all parents and adult students are very important, there are clear and straightforward ways under FERPA that institutions can disclose information to parents and keep them involved in the lives of their sons and daughters at school.
Last Modified: 06/07/2009 by US Department of Education
*Inserted by Director of Student Conduct- See FERPA: Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Colleges and Universities-October 2009 Handout
FERPA: Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Colleges and Universities-February 2009
SOURCE: U.S. Department of Education FAQ (02/19/2009)
Postsecondary officials are regularly asked to balance the interests of safety and privacy for individual students. While the Family Educational Rights and Privacy Act (FERPA) generally requires institutions to ask for written consent before disclosing a student's personally identifiable information, it also allows colleges and universities to take key steps to maintain campus safety. Understanding the law empowers school officials to act decisively and quickly when issues arise.
In an emergency, FERPA permits school officials to disclose without student consent education records, including personally identifiable information from those records, to protect the health or safety of students or other individuals. At such times, records and information may be released to appropriate parties such as law enforcement officials, public health officials, and trained medical personnel. See 34 CFR Â§ 99.31(a)(10) and Â§ 99.36. This exception to FERPA's general consent rule is limited to the period of the emergency and generally does not allow for a blanket release of personally identifiable information from a student's education records. In addition, the Department interprets FERPA to permit institutions to disclose information from education records to parents if a health or safety emergency involves their son or daughter.
While student disciplinary records are protected as education records under FERPA, there are certain circumstances in which disciplinary records may be disclosed without the student's consent. A postsecondary institution may disclose to an alleged victim of any crime of violence or non-forcible sex offense the final results of a disciplinary proceeding conducted by the institution against the alleged perpetrator of that crime, regardless of whether the institution concluded a violation was committed. An institution may disclose to anyone, not just the victim, the final results of a disciplinary proceeding, if it determines that the student is an alleged perpetrator of a crime of violence or non-forcible sex offense, and with respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies. See 34 CFR Â§Â§ 99.31(a)(13) and (14).
The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act requires postsecondary institutions to provide timely warnings of crimes that represent a threat to the safety of students or employees and to make public their campus security policies. It also requires that crime data be collected, reported, and disseminated to the campus community and to the Department annually. The Clery Act is intended to provide students and their families with accurate, complete, and timely information about safety on campuses so that they can make informed decisions. Such disclosures are permitted under FERPA. The following Web site provides more information about these and other provisions about campus safety: U.S. Department of Education Campus Security.
While an institution has flexibility in deciding how to carry out safety functions, it must also indicate in its policy or in information provided to students which office or school official serves as the college or university's "law enforcement unit." (The institution's notification to students of their rights under FERPA can include this designation. As an example, the Department has posted a model notification online.)
Law enforcement unit officials who are employed by the college or university should be designated in the institution's FERPA notification as "school officials" with a "legitimate educational interest." As such, they may be given access to personally identifiable information from students' education records. The institution's law enforcement unit officials must protect the privacy of education records it receives and may disclose them only in compliance with FERPA. For that reason, it is advisable that law enforcement unit records be maintained separately from education records.
When a student turns 18 years old or enters a postsecondary institution at any age, all rights afforded to parents under FERPA transfer to the student. However, FERPA also provides ways in which schools may share information with parents without the student's consent. For example:
- Schools may disclose education records to parents if the student is a dependent for income tax purposes.
- Schools may disclose education records to parents if a health or safety emergency involves their son or daughter.
- Schools may inform parents if the student who is under age 21 has violated any law or its policy concerning the use or possession of alcohol or a controlled substance.
- A school official may generally share with a parent information that is based on that official's personal knowledge or observation of the student.
Postsecondary institutions that provide health or medical services to students may share student medical treatment records with parents under the circumstances described above. While these records may otherwise be governed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the HIPAA Privacy Rule excludes student medical treatment records and other records protected by FERPA. The Department plans to issue further guidance on the interplay between FERPA and HIPAA.
FERPA permits institutions to comply with information requests from the Department of Homeland Security (DHS) and its Immigration and Customs Enforcement Bureau (ICE) in order to comply with the requirements of SEVIS. Officials who have specific questions about this and other matters involving international students should contact the U.S. Department of Education's Family Policy Compliance Office.
Finally, FERPA permits school officials to disclose any and all education records, including disciplinary records, to another institution at which the student seeks or intends to enroll. While student consent is not required for transferring education records, the institution's annual FERPA notification should indicate that such disclosures are made. In the absence of information about disclosures in the annual FERPA notification, school officials must make a reasonable attempt to notify the student about the disclosure, unless the student initiates the disclosure. Additionally, upon request, the institution must provide a copy of the information disclosed and an opportunity for a hearing. See 34 CFR § 99.31(a)(2) and § 99.34(a).