1 Office of the General Counsel FERPA  Family Educational Rights and Privacy Act (20 U.S.C § 1232g)

2 Office of the General Counsel TWO PARTS: ACCESS AND RELEASE  FERPA Access  FERPA Release

3 Office of the General Counsel FERPA Access  An “educational agency or institution” must grant students who are or have been in attendance at the educational institution the right to inspect and review their education records. 20 U.S.C. §1232g (a)(1)(A). Grant students a hearing to challenge the content of education records, correct or delete inaccurate information, and insert a written explanation of content. 20 U.S.C. §1232g (a)(2).

4 Office of the General Counsel FERPA Access  “Educational agency or institution” = “any public or private agency or institution which is the recipient of funds under any applicable program.” 20 U.S.C. §1232g (a)(3).  “Education record” = (with exceptions) “those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. §1232g (a)(4)(A).

5 Office of the General Counsel FERPA Access  "Record” = “any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche." 34 CFR §99.3. So, it does not include information that is not "recorded" – that is, personal knowledge.  "Directly related" = contains "personally identifiable information" about that student

6 Office of the General Counsel FERPA Access  Personally Identifiable Information -- includes, but is not limited to— (a) The student's name; (b) The name of the student's parent or other family members; (c) The address of the student or student's family; (d) A personal identifier, such as the student's social security number, student number, or biometric record;

7 Office of the General Counsel FERPA Access  Personally Identifiable Information -- includes, but is not limited to— (e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name; (f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates. 34 CFR §99.3.

8 Office of the General Counsel FERPA Access  Exceptions to definition of “education record”: Treatment records made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity. 20 U.S.C. §1232g (a)(4)(B)(iv).

9 Office of the General Counsel FERPA Access  Exceptions to definition of “education record”: Treatment records made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity. 20 U.S.C. §1232g (a)(4)(B)(iv). Records of non-student employees. The Department of Education has interpreted this exemption not to include “records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student.” Such records are education records under the statute. 34 CFR §99.3.

10 Office of the General Counsel FERPA Access  Exceptions to definition of “education record”: Law Enforcement Records – “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.” 20 U.S.C. §1232g (a)(4)(B)(ii)

11 Office of the General Counsel FERPA Access  Exceptions to definition of “education record”: Law Enforcement Records – “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.” 20 U.S.C. §1232g (a)(4)(B)(ii) Parents’ financial records Some confidential letters of recommendation Instructional, supervisory and administrative records in the sole possession of the maker and not accessible or revealed to any other person except a substitute

12 Office of the General Counsel FERPA Releases are Prohibited (Sort of)  General Rule - An “educational agency or institution” may not (with certain exceptions) release “education records (or personally identifiable information contained therein other than directory information)” without the consent of the student. 20 U.S.C. § 1232g (b)(1).  Permitted/ Unconsented Releases – They’re Everywhere

13 Office of the General Counsel Permitted Releases  Other school officials (within the University) with legitimate educational interests;  Defined by the University: "University officials" = “any professional employee who is head of an office, department, school, college, division, or their specified designee.” also includes “any contractor, consultant, volunteer of other party to whom UMass Amherst has outsourced institutional services or functions.” “Legitimate educational interest" = the official “needs to review an education record in order to fulfill his or her professional responsibility.”

14 Office of the General Counsel Permitted Releases  Other school officials (within the University) with legitimate educational interests;  Officials of other schools in which the student seeks to enroll;  Comptroller General of the United States;

15 Office of the General Counsel Permitted Releases  Secretary of Education;  Attorney General of the United States for law enforcement purposes (of federal legal requirements applicable to federally supported education programs), with restrictions;  State educational authorities;  In connection with student financial aid;

16 Office of the General Counsel Permitted Releases  In connection with certain violent crimes and nonforcible sex offenses; to the victim to the public  To certain state and local officials in connection with the state’s juvenile justice system;  Organizations conducting educational studies;

17 Office of the General Counsel Permitted Releases  Accrediting organizations;  Parents of a dependent student;  In a health and safety emergency; to “appropriate parties if knowledge of the information is necessary to protect the health or safety of the student or other individuals if there is an articulable and significant threat to the health or safety of a student or other individuals.

18 Office of the General Counsel Permitted Releases  In response to a subpoena, usually with notice to the student;  In connection with an ex parte order connected to investigation of terrorism crimes (national security letter)

19 Office of the General Counsel Permitted Releases  “Directory information” defined by the University, within certain parameters.  Campus definition: “student's name, local address, home address, address, major, local telephone number, date and place of birth; acknowledgement of a student's participation in officially recognized activities and sports, weight and height of members of athletic teams, date(s) of attendance, degrees, certificates, awards received, student employment status and the most recent previous educational agency or institution attended by the student.”

20 Office of the General Counsel FERPA  Questions?

21 Office of the General Counsel FERPA  Questions?