1 FERPA and University Research Records ECURE 3:00-4:00, March 2, 2004 Richard Rainsberger Consultant, Education Records Law and Privacy

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." ________________________________ DEFINITIONS OF TERMS FOR ADMISSIONS AND RECORDS. Washington, D.C.: AACRAO, 1980, p. 28.

3 FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT OF 1974 THIS ACT IS ENFORCED BY THE FAMILY POLICY COMPLIANCE OFFICE, U.S. DEPARTMENT OF EDUCATION, WASHINGTON, D.C.

4 Family Policy Compliance Office Leroy Rooker, Director U.S. Dept. of Education 400 Maryland Ave., SW Washington,D.C (202) (fax) The Authoritative Source

5 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.

6 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

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

8 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.

9 “PERSONALLY IDENTIFIABLE” "PERSONALLY IDENTIFIABLE" MEANS DATA OR INFORMATION WHICH INCLUDES: (1) THE NAME OF THE STUDENT, THE STUDENT'S PARENT, OR OTHER FAMILY MEMBERS (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

10 Grades Posted on Bulletin Board outside of Instructor’s Office

11 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 DOCTOR-PATIENT PRIVILEGE RECORDS 4 ALUMNI RECORDS

12 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

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

14 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 INSTITUTIONTHAT WOULD NOT NORMALLY BE CONSIDERED AN INVASION OF A STUDENT’S PRIVACY DIRECTORY INFORMATION MAY INCLUDE THE FOLLOWING STUDENT INFORMATION:

15 WHAT CAN DIRECTORY INFORMATION INCLUDE? 4 CLASS SCHEDULE 4 ADDRESS 4 CLASS ROSTERS 4 PHOTOGRAPHS DIRECTORY INFORMATION MAY INCLUDE THE FOLLOWING RECENT ADDITIONS TO STUDENT INFORMATION:

16 WHAT CAN DIRECTORY INFORMATION INCLUDE? 4 RACE 4 GENDER 4 SOCIAL SECURITY NUMBER 4 TEST SCORES 4 GRADES 4 GPA 4 COUNTRY OF CITIZENSHIP 4 RELIGION DIRECTORY INFORMATION CAN NEVER INCLUDE A STUDENT’S:

17 4Must be defined as such by each institution. 4If 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

18 4Know what your institution identifies as directory information. DIRECTORY INFORMATION

19 “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 “SCHOOLOFFICIAL” FOR FERPA PURPOSES. Don’t read the Small Print

20 “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

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

22 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:

23 PROCEDURES AND STRATEGIES FOR COMPLIANCE B. RECORDS OF REQUESTS AND DISCLOSURES 1. ALL INSTITUTIONS ARE REQUIRED TO MAINTAIN RECORDS OF REQUESTS AND DISCLOSURES OF PERSONALLY IDENTIFIABLE INFORMATION a. THESE RECORDS WILL INCLUDE THE NAMES AND ADDRESSES OF THE REQUESTOR AND HIS/HER INDICATED INTEREST IN THE RECORDS.

24 PROCEDURES AND STRATEGIES FOR COMPLIANCE B. RECORDS OF REQUESTS AND DISCLOSURES 2. THESE RECORDS MUST BE RETAINED AS LONG AS THE EDUCATION RECORDS TO WHICH THEY REFER ARE MAINTAINED BY THE INSTITUTION.

25 PROCEDURES AND STRATEGIES FOR COMPLIANCE C. RECORDS OF REQUESTS AND DISCLOSURES DO NOT HAVE TO BE KEPT FOR: a. REQUESTS FROM STUDENTS FOR THEIR OWN USE b. DISCLOSURES IN RESPONSE TO WRITTEN REQUESTS FROM STUDENTS c. REQUESTS MADE BY SCHOOL OFFICIALS d. THOSE SPECIFIED AS DIRECTORY INFORMATION e. WHAT'S LEFT?

26 Institutions may release information without written permission to… Organizations conducting studies to develop, validate, and administer predictive tests, to administer student aid programs, or to improve instruction, See Attachment A, #5

27 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

28 Handling Subpoenas 4 A court order normally not reviewed by a judge before being issued. 4 If issued by a state court, it only has jurisdiction within that state. 4 If issued by a federal district court, it has jurisdiction in all 50 states. 4 Does your institution have a policy on handling subpoenas? 4 If not, determine what steps you will follow if you receive one.

29 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!!

30 Parents’ Access to Students’ Records Parents may prove that the student is their legal dependent (See Attachment A, #7) The decision to release is still yours.

31 Genealogical Research Do spouses/relatives of students of research studies have a legal right to access those records? FERPA ceases upon the student’s death. You need to determine if the student is deceased. Do you have a policy? NO!!

32 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 FOIA laws (FOIA=Freedom of Information Act)

33 States’ Open Records Laws Efoiwww/citelist.html NO SPACES IN ABOVE URL

34 So… What would you do if a researcher requested records under your control?

35 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?

36 To Contact Me… Richard A. Rainsberger, Ph.D. Consultant Education Records Law and Privacy