1. 1 FERPA Family Education Rights and Privacy Act of 1974 Joanne M. Adamchak Assistant General Counsel

2. 2 FERPA & Related Statutes Family Education Rights and Privacy Act: 20 USC 1232(g) (US Code) Federal Register Enabling FERPA: 34 CFR 99 (Code of Federal Regulations) Florida Definition of Student Records: Fla. Statute §1002.22 Florida Public Record Law: Fla. Statute §119.001

3. 3 FERPA applies to all schools that receive federal funding under most programs administered by the Secretary of Education. FERPA regulates: (1) The privacy aspect of the records in keeping them from the public (2)The right to access afforded the student

4. 4 From the Student Perspective: Three Primary Rights Afforded Students –1.Right to inspect and review records –2.Right to seek amendment of the records –3.Right to consent to disclosures of information unless the disclosure falls into one or more of the exceptions under 34 CFR 99.31

5. 5 What are student education records? What are the exceptions?

6. 6 Student Education Records Refer to 34 CFR 99.3 Defines Education records as those records directly related to a student and maintained by an educational agency or institution or by a party acting for an educational agency or institution. *broadly defined *all records unless excepted by statute

7. 7 Exceptions 1. *Records of personnel are kept in the sole possession of the maker of the record. 2. *Records of a Law Enforcement unit of an educational agency or institution. 3. *Records relating to an individual who is employed by an educational agency or institution. 4. *Records made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her own capacity or assisting in a paraprofessional capacity, made, maintained, or used only in connection with treatment of the student.

8. 8 EXCEPTIONS TO RIGHT TO CONSENT Once you have determined you have a student record determine if you need consent. (34 CFR 99.30) Note: This is different from the exceptions discussed earlier such as: *records by instructor for sole use *records of law enforcement for sole use *employment records *psych records for treatment

9. 9 Exceptions to right to consent: 34 CFR 99.31 states that an educational institution may disclose personally identifiable information without consent required by 34 CFR 99.30 if it meets one of 12 exceptions: 1. Disclosure to School Officials 2. Disclosure to Schools in which student intends to enroll 3. Disclosure to Federal and State Authorities for Audit 4. Disclosure in connection with Financial Aid 5. Disclosure to State and Local Authorities 6. Disclosure for Studies for educational institutions 7. Disclosure to Accrediting Agency 8. Disclosure to parents of Dependent Student 9. Disclosure to comply with judicial order or subpoena 10. Disclosure in connection with health and safety emergency 11. Disclosure of Directory Information (see next slide) 12. Disclosure to the Student

10. 10 Directory Information “Directory information” is – - Information not generally considered harmful or an invasion of privacy if disclosed. - Includes, but is not limited to: name, address, telephone listing date and place of birth, photographs participation in officially recognized activities and sports field of study weight and height of athletes enrollment status (full, part-time, undergraduate, graduate) degrees & awards received dates of attendance most recent previous school attended

11. 11 Note: Do not confuse exceptions to “what is a record” vs. exceptions for “consent to disclose”... they are two different things If it is not a student record, no consent is required and in fact it could be considered a public record and must be made available under Florida law (119.119).

12. 12 RIGHT TO INSPECT AND REVIEW “ An educational institution shall permit a student to inspect and review their educational records.” Questions: Does the institution need to give or send a copy of all records to the student? No, you may require the student to review the records at the University if feasible. Can a student access their grades via the telephone with a code # or other verification? No, unless there is a written waiver or authorization on file. Limitations: 34 CFR 99.12 *If information is on more than one student *No right to review financial information about a parent *No right to review confidential letters and statements of recommendation placed in the student’s records after January 1, 1975 If the student waived the right –related to student’s admission, application for employment or receipt of an honorary recognition

13. 13 Right to Seek Amendment Student’s Right: *Student may only request an amendment if the information is inaccurate, misleading or invasion of privacy. *Student cannot require an institution to keep a certain kind of record, Institution’s Responsibilities: *Institution must respond in a reasonable period of time, *If no amendment to be made, institution must inform student of that right and their right to a hearing, Hearing: *34 CFR 99.22: General requirements, the hearing does not need to be like a court of law. *If student’s request denied at hearing: student can put comment in their records.

14. 14 Right to Consent to Disclosure Except as provided in 34 CFR 99.31 an educational institution shall obtain a student’s signed and dated consent form with the –Records requested –Purpose of Disclosure –Party to whom disclosure is to be made ***can be revoked Note: FERPA only requires disclosure to student: the rest is a MAY disclose regulation

15. 15 General Discussion Points *Disclosure to the media: A lawsuit does not make a student record a public record. *Deceased students: Right of privacy expires with an individual’s death. Psychiatric records under Florida Privacy Laws: A physician may invoke the right to privacy. Subpoenas: A student has the right to be notified before compliance with a subpoena. Parents: Parents are not entitled to records – parents with dependent students may obtain records but this is at the University’s discretion.