What is FERPA?

The Family Educational Rights and Privacy Act (FERPA) is a federal law that affords parents the right to have access to their children’s education records, the right to seek to have the records amended, and the right to have some control over the disclosure of personally identifiable information from the education records. When a student turns 18 years old, or enters a post secondary institution at any age, the rights under FERPA transfer from the parents to the student (“eligible student”). The FERPA statute is found at 20 U.S.C. § 1232g and the FERPA regulations are found at 34 CFR Part 99.

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A student has opted out of directory information and wants to be anonymous in an online course. Are we required to allow the student to take the course anonymously?

No. Under FERPA, a student may not use his or her right to opt out of directory information disclosures to prevent school officials from identifying the student by name or disclosing the student’s electronic identifier or institutional e-mail address in class.

An eligible student that opted out of directory information has left the school. Now that the student is no longer in attendance, may the school disclose that student's directory information?

No, a school is required to honor the eligible student’s request to opt out of the disclosure of directory information made while the student was in attendance, unless the student rescinds the opt out request.

Are educational agencies and institutions required to notify parents and eligible students of their rights under FERPA?

Yes. Educational agencies and institutions must annually notify parents and eligible students of their rights under FERPA. Specifically, schools must notify parents and eligible students of the right: to inspect and review education records and the procedures to do so; to seek amendment of records the parent or eligible student believes are inaccurate and the procedures to so do; to consent to disclosures of education records, except to the extent that FERPA authorizes disclosure without consent; and to file a complaint with FPCO concerning potential violations. Post secondary institutions are only required to notify eligible students of their rights under FERPA.34 CFR § 99.7

Are law enforcement records considered education records?

“Law enforcement unit records” (i.e., records created by the law enforcement unit, created for a law enforcement purpose, and maintained by the law enforcement unit) are not “education records” subject to the privacy protections of FERPA. As such, the law enforcement unit may refuse to provide a parent or eligible student with an opportunity to inspect and review law enforcement unit records, and it may disclose law enforcement unit records to third parties without the parent or eligible student’s prior written consent. However, education records, or personally identifiable information from education records, which the school shares with the law enforcement unit, do not lose their protected status as education records just because they are shared with the law enforcement unit.

Are law enforcement records protected under FERPA?

“Law enforcement unit records” (i.e., records created by a law enforcement unit at the educational agency or institution, created for a law enforcement purpose, and maintained by the law enforcement unit) are not “education records” subject to the privacy protections of FERPA. As such, the law enforcement unit may refuse to provide a parent or eligible student with an opportunity to inspect and review law enforcement unit records, and it may disclose law enforcement unit records to third parties without the parent’s or eligible student’s prior written consent.

Resources:

FERPA General Guidance for Parents

Are schools required to record the disclosure of personally identifiable information (PII) from students’ education records whenever they make disclosures?

Subject to certain exceptions addressed below, schools must maintain a record of each request for access to, and each disclosure of PII from, the education records of each student, as well as the names of state and local educational authorities and federal officials and agencies listed in § 99.31(a)(3) that may make further disclosures of PII from students’ education records without consent. The school must maintain this record with the education records of the student as long as the education records are maintained.

Schools do not have to record disclosures of PII from education records that were made to: 1) the parent or eligible student; 2) a school official under § 99.31(a)(1); 3) a party with written consent from the parent or eligible student; 4) a party seeking directory information; or 5) a party seeking or receiving records in accordance with the provisions in FERPA related to disclosures pursuant to certain types of subpoenas or court orders as set forth in § 99.31(a)(9)(ii)(A)-(C). See § 99.32(d).

Are there any limitations to sharing information based on personal knowledge or observations?

FERPA applies to the disclosure of personally identifiable information (PII) from education records that are maintained by the school. Therefore, FERPA does not prohibit a school official from releasing information about a student that was obtained through the school official’s personal knowledge or observation unless that knowledge is obtained through his or her official role in making a determination maintained in an education records about the student. For example, under FERPA a principal or other school official who took official action to suspend a student may not disclose that information, absent consent or an exception under § 99.31 that permits the disclosure.

Can the same recorded image be the education record of more than one student under FERPA?

Yes. For example, a surveillance video that shows two students fighting on a school bus that the school uses and maintains to discipline the two students, would be “directly related to” and, therefore, the education record of both students.

Does FERPA permit educational agencies and institutions turn over videos to the police upon request or following an incident that may warrant police involvement?

If the law enforcement unit of an educational agency or institution creates and maintains videos for a law enforcement purpose, then the videos would not be education records and FERPA would not prohibit the law enforcement unit of an educational agency or institution from disclosing the videos to the police. If the videos are education records, however, educational agencies and institutions may not turn over videos to the police upon request without having first either obtained the written consent of the parent or eligible student or determined that the conditions of an exception to the general requirement of consent have been met, such as if the disclosure is made in connection with a health or safety emergency (20 U.S.C. 1232g(b)(1)(I) and 34 CFR §§ 99.31(a)(10) and 99.36) or the law enforcement officer has presented the educational agency or institution with a judicial order or a lawfully issued subpoena (20 U.S.C. 1232g(b)(1)(J) and (b)(2) and 34 CFR § 99.31(a)(9)).

Does FERPA permit legal representatives of parents or eligible students to inspect and review videos with the parent or eligible student?

Yes. FERPA permits legal representatives of a parent or an eligible student to inspect and review videos with the parent or eligible student. While FERPA does not require educational agencies and institutions to allow parents or eligible students to bring their attorney or other legal representative with them when they exercise their right to inspect and review the student’s education records, nothing in FERPA prevents educational agencies and institutions from allowing parents or eligible students to bring their attorney or other legal representative with them when they exercise their right to inspect and review the student’s education records under FERPA.