1. 1 FERPA and Student Privacy in Records of University Research ECURE March 1, 2005 Richard Rainsberger, Ph.D. Consultant, Education Records Law and Privacy Issues

2. 2 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 ferpa@ed.gov

3. 3 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.

4. 4 SOME KEY CONCEPTS 4 Written permission of student required to disclose 4 The exceptions to written permission 4 Student's right to access their records 4 Legitimate Educational Interest 4 The “mays” and the “musts” of FERPA

5. 5 SOME KEY TERMS 4 Education Record 4 Personally Identifiable 4 Directory Information 4 School Official

6. 6 WHAT IS AN EDUCATION RECORD? 4 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 4 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.

7. 7 “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

8. 8 WHAT AN EDUCATION RECORD IS NOT!! 4 “SOLE POSSESSION” NOTES 4 LAW ENFORCEMENT UNIT RECORDS 4 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. 4 MEDICAL TREATMENT RECORDS 4 ALUMNI RECORDS

9. 9 WHAT IS AN EDUCATION RECORD? (SUMMARY) 4 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

10. 10 DIRECTORY INFORMATION INFORMATION NOT NORMALLY CONSIDERED A VIOLATION OF A STUDENT’S PRIVACY THIS INFORMATION MAY BE RELEASED WITHOUT THE STUDENT’S WRITTEN PERMISSION.

11. 11 WHAT CAN DIRECTORY INFORMATION INCLUDE? 4 STUDENT’S NAME 4 ADDRESS 4 TELEPHONE NUMBER 4 DATE/PLACE OF BIRTH 4 MAJOR 4 FIELDS OF STUDY 4 PARTICIPATION IN OFFICIALLY RECOGNIZED ACTIVITIES AND SPORTS 4 HEIGHT/WEIGHT OF ATHLETIC TEAM MEMBERS 4 DATES OF ATTENDANCE 4 DEGREES AND AWARDS RECEIVED 4 MOST RECENT EDUCATIONAL INSTITUTION ATTENDED 4 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:

12. 12 WHAT CAN DIRECTORY INFORMATION INCLUDE? 4 CLASS SCHEDULE 4 E-MAIL ADDRESS 4 CLASS ROSTERS 4 PHOTOGRAPHS DIRECTORY INFORMATION MAY INCLUDE THE FOLLOWING RECENT ADDITIONS TO STUDENT INFORMATION:

13. 13 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

14. 14  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

15. 15  Know what your institution identifies as directory information. DIRECTORY INFORMATION

16. 16 “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

17. 17 “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

18. 18 REQUIREMENTS FOR COMPLIANCE WHAT WE MUST DO...  PROVIDE ANNUAL NOTIFICATION TO STUDENTS OF THEIR FERPA RIGHTS  PROVIDE STUDENTS’ ACCESS TO THEIR EDUCATION RECORDS

19. 19 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.

20. 20 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:

21. 21 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)

22. 22 So… What would you do if you are conducting research that includes students as subjects? SEE ATTACHMENTS B AND C

23. 23 So… What about students’ research: the research data and the end product (dissertations, theses, term papers, journal articles)? SEE ATTACHMENT D

24. 24 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

25. 25 So…What about… What about faculty reusing student research papers in subsequent classes? Does that fit within the definition of educational record?

26. 26 So…What about… Can students use FERPA to restrict access to their own research, especially if faculty want to publish it? Copyright or not?

27. 27 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?

28. 28 States’ Open Records Laws Only 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)

29. 29 States’ Open Records Laws http://web.missouri.edu/% 7Efoiwww/citelist.html NO SPACES IN ABOVE URL

30. 30 To Contact Me… Richard A. Rainsberger, Ph.D. Consultant Education Records Law and Privacy ferpadoc@hotmail.com 330-364-6976