The Family Educational Rights and Privacy Act (FERPA)

This section explores the Family Educational Rights and Privacy Act (FERPA), the Individuals with Disabilities Education Improvement Act (IDEA), and the Protection of Pupil Rights Amendment (PPRA).

THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA) GENERALLY

The Family Educational Rights and Privacy Act (FERPA) of 1974 governs access to and release of education records by public and private schools that receive federal funding. [1] FERPA defines a student’s education record as records, files, documents, and other material maintained by a school or a person acting for the school and containing information directly related to a student. [2]

As a general rule, a minor child’s educational records and any health-related information it contains can be reviewed by the child’s parents, guardians, or persons standing in loco parentis to the child. [3] However, when a student turns 18 or enters into post-secondary education, the student becomes an “eligible student” and assumes control over the review of his/her education records. [4] The following are not open to review by a parent or eligible student:

• Memory-aid notes made by a school professional, such as a school counselor or psychologist, and maintained in that individual’s sole possession. School professionals may – but are not required to -- release them to parents or eligible students. [5]
• Records made by officials of a school law enforcement unit [6] as long as they are for a law enforcement purpose and kept separate from other records at the school. [7] Law enforcement officials may – but are not required to – release these records to parents or eligible students. [8] Moreover, officials may release these records to third parties without the consent of the parent or eligible student.

The effect of these twoFERPA provisionsis the same, i.e., the parent or eligible student does not have the right to review records but the reasons for each provision’s effect is different. [9] While school professionals’ notes are excluded from review because they belong solely to the professionals, [10] law enforcement records are excluded because they are not education records. [11] As such, school law enforcement units are subject to FERPA for education records (or information contained therein) that they maintain. And school professionals are subject to FERPA for education records (or information contained therein) that they maintain, as long as that information is not a “memory aid note." [12]

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THE RELEASE OF EDUCATION RECORDS

Parents generally control the release of their child’s education records and third-party access to them. In most cases, schools must obtain written parental consent to share students’ education records. [13] When a student turns 18, FERPA rights transfer to the “eligible student,” who then assumes the rights of review and control over third-party access to his or her education records. [14]

Information contained in the child’s educational record may not be disclosed to a third party without the prior signed consent of the student’s parents (or without the consent of the student if s/he is eighteen years or older.) Under FERPA, an authorization to release education records must:

• Specify the records to be disclosed;
• State the purpose of the disclosure;
• Identify the party or class of parties to whom disclosure is to made; and
• Be signed and date by the parent/guardian or eligible student. [15]

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FERPA EXCEPTIONS

However, schools may release educational records without a signed consent form under any of the following circumstances, which are explained in more detail below:

• Directory information
• To a school official with a legitimate educational interest
• In a health or safety emergency
• In response to a judicial order or subpoena
• For studies
• To a caseworker (“Uninterrupted Scholars Act”) [16]
• Prior to a youth’s adjudication [17] (“juvenile justice exception”)
• Enrollment in another school
• Investigation/Prosecution of Terrorism

DIRECTORY INFORMATION

Schools may release “directory information” without obtaining parental consent if the school has given prior notice to parents of the specified types of directory information it intends to disclose and parents have an opportunity to notify the school in writing that they do not want their child’s directory information disclosed. [18] Notice can be provided by “any means likely to inform eligible students of the types of information it has designated as directory information.” [19] The Department of Education guidance on this matter does not specify whether the notice has to be in writing. [20] Sometimes schools include the directory information notification in their annual notification. [21] Under FERPA, directory information includes—but is not limited to—the following information about a student: name, address, phone number, date and place of birth, participation in school activities, dates of attendance, photograph, and field of study. [22]

SCHOOL OFFICIAL WITH LEGITIMATE EDUCATIONAL INTEREST

Schools may release education records without parental consent to “officials” within the student’s school who have a “legitimate educational interest.” [23] If a school district exercises this policy, the school must notify parents in of its criteria for determining who is a school official and what constitutes a legitimate educational interest. [24] This notification must occur annually and also include information about an eligible student's right to inspect and review his or her education records, the right to seek to amend the records, the right to consent to disclosure of personally identifiable information from the records (except in certain circumstances), and the right to file a complaint with the Department of Education’s Family Policy Compliance Office about an alleged failure by a school to comply with FERPA. [25]

The school may provide notification by “any means likely to inform eligible students of their rights.” [26] Although the guidance does not explicitly state that the notification must be in writing, all of the suggested means are in writing i.e. “publication in a schedule of classes; in a student handbook; in a calendar of school events; on the school's website…; in the student newspaper; and/or posted in a central location at the school or various locations throughout the school.” [27]

School districts commonly define “school officials” as teachers, teachers’ aides, health and counseling staff, and administrative and legal staff. [28] In some districts, school officials also include school board/school committee members and volunteers or employees of organizations with whom the school contracts to provide services. [29] Individuals who receive information under the legitimate educational interest exception may not re-release the information except in accordance with FERPA. [30]

HEALTH OR SAFETY EMERGENCY

Schools may release education records without parental consent in connection with a health or safety emergency if the information is needed to protect the health or safety of students or others. [31] To fall under this exception, a situation to must constitute an “articulable and significant threat” [32] to a student or other individuals and the information must be needed to protect their health or safety. [33] When these conditions apply, the school may disclose the information to appropriate parties without parental consent. Typically, law enforcement officials, public health officials, trained medical personnel, and parents are the types of appropriate parties to whom information may be disclosed under this FERPA exception. [34]

JUDICIAL ORDER OR SUBPOENA

Schools may also release information without written consent to comply with a judicial order or subpoena, but the school must make a “reasonable effort” to notify the parent before releasing the record. [35]  Prior notice is not necessary, however, in any the following situations: (1) the subpoena is from a federal grand jury, the subpoena is issued for a law enforcement purpose, [36] or (3) the judicial order was issued in a court proceeding involving a child abuse and neglect proceeding to which the parent is a party. [37]

STUDIES

Information contained in an education record without the consent of the parent or student under FERPA’s two studies exceptions. [38] First, information may be released if it is for the limited purpose of “developing, validating, or administering predictive tests, administering student aid programs and improving instruction,” if “personally identifiable information” is protected. [39] (Personally identifiable information includes a student’s name, parents’ names, address, social security number or student ID number, and list of personal characteristics or other information that would make the student’s identity easily traceable.) Second, information may be released for studies for the purposes of measuring effectiveness of nutrition services. [40]

ENROLLMENT IN ANOTHER SCHOOL

Officials of other schools or school systems in which the student seeks or intends to enroll may transfer records without permission as long as the student’s parents are notified of the transfer, receive a copy of the record if desired, and have an opportunity for a hearing to challenge the content of the record. [41]

PRIOR TO ADJUDICATION (“JUVENILE JUSTICE EXCEPTION”)

Under this exception, juvenile justice personnel may receive educational information regarding a student involved in the juvenile justice system without the consent of the student’s parent when certain conditions are in place. See section 1.a.iv on FERPA and the Child Welfare and Juvenile Justice System below for further discussion of this exception.

INVESTIGATION/PROSECUTION OF TERRORISM “PATRIOT ACT”

Schools also may disclose personally identifiable information from the student's education records to the Attorney General of the United States or to his designee in response to an ex parte order (an order issued by a court of competent jurisdiction without notice to an adverse party) [42] in connection with the investigation or prosecution of terrorism crimes. Information must subsequently be destroyed when it is no longer needed for the research. [43] These exceptions allow agencies and institutions to aggregate data and disclose statistical information from educational records, without consent, so long as the student’s identity is not easily traceable.[44]

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FERPA AND THE CHILD WELFARE AND JUVENILE JUSTICE SYSTEMS

In 2013, the Uninterrupted Scholars Act amended FERPA to provide child welfare caseworkers with easier access to certain students’ education records. [45] The Uninterrupted Scholars Act creates a new exception under FERPA that allows schools to release a child’s education records without parental notification or consent to an agency caseworker or other representative of a State or local child welfare agency or tribal organization.[46]

Specifically, under this amentment a school may disclose education records to (1) an agency caseworker or other representative of the child welfare agency, (2) who has access to the case plan, where (3) the agency is legally responsible for the care and protection of the student. [47] The receiving agency or organization can then redisclose the records, but only to an agency or individual who is “engaged in addressing the student’s education needs.” [48] And the redisclosure must be consistent with state or tribal laws. [49]

In practice, the Uninterrupted Scholars Act exception to FERPA allows schools to give caseworkers all of a student’s education records (including Individualized Education Plans where applicable because they are part of the education record). [50] However, the parent still retains the ability to “correct” the child’s records if necessary, and will remain the FERPA parent for purposes of accessing the child’s education record. [51]

In addition to setting rules for sharing education records with agency caseworkers and other representatives, FERPA identifies special circumstances in which schools may release education records to juvenile justice agencies. [52] These circumstances are sometimes referred to as the juvenile justice exception. Under this exception, juvenile justice personnel may receive educational information regarding a student involved in the juvenile justice system without the consent of the student’s parent when all of the following conditions are in place:

1. The child has not yet been adjudicated delinquent [53] under state law; [54]
2. A state law specifically authorizes the disclosure;
3. The disclosure is to a state or local juvenile justice system agency “officials”;
4. The disclosure relates to the juvenile justice system’s ability to “effectively serve” a student prior to adjudication; and
5. State or local officials certify in writing that the institution or individual receiving the information has agreed not to disclose it to a third party outside the juvenile justice agency. [55]

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The Individuals with Disabilities Education Improvement Act (IDEA)

The Individuals with Disabilities Education Improvement Act (IDEIA) of 2004 amended the Individuals with Disabilities Education Act (IDEA), originally enacted in 1975. The amended IDEA, referred to here as the IDEA, explains in Part B that in exchange for federal funding, states must provide students with disabilities who are eligible for services under the IDEA a “free, appropriate public education” (or FAPE) in the least restrictive environment. [56] In Part B it also sets forth the process to provide such education, including evaluations for services, eligibility determinations, individualized education programs (IEPs), and educational placements, [57] as well as procedural safeguards. [58] The IDEA recognizes the need to protect the confidentiality of special education records.

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IDEA CONFIDENTIALITY REGULATIONS

According to the IDEA, schools must comport with the confidentiality provisions in both the IDEA and its regulations, as well as FERPA and its regulations. [59] The laws are consistent and, therefore, complying with both laws will not cause conflicts. In short, the IDEA provides that any personally identifiable information that is part of the education record is controlled by FERPA. Anything that is not part of the education record can only be shared with “participating agencies,” unless the information falls into two special circumstances. [60]

WHAT AN EDUCATION RECORD LOOKS LIKE FOR A CHILD WITH A DISABILITY

The IDEA grants parents the right to inspect and review all education records, [61] and defers to FERPA’s definition of an education record. [62] As discussed under the FERPA heading of this site, apart from specifically enumerated exceptions, [63] education records under FERPA are those records that are (1) directly related to a student, and (2) maintained by an educational agency or a party acting for the institution.[64]

Special education records are all records dealing with the identification, evaluation, educational placement, and the provision of FAPE to a child. [65] These records are included in the education record when they meet FERPA’s definition of education record described above. [66] IEPs, for example, meet that definition and must be in the education record for at least five years. [67] Accompanying documentation used to design the IEP also may be in the education record, if the individual maintaining the record is employed with the school. Take for example a psychological evaluation that will be used to create an IEP for a child with autism. That evaluation, because it will be maintained by a psychologist who is acting for the school, is part of the education record.

By contrast, an outside evaluation, such as a psychological evaluation that is performed at an outside hospital, by a psychologist who is not acting for the school would NOT be part of the educational record UNLESS the parent provides a school with a copy.

Finally, another piece of information you might find in the education record of a child receiving services under IDEA are decisions of both state and local hearing officers relating to special education. [68]

PARTICIPATING AGENCIES AND THE TWO CIRCUMSTANCES WHEN EDUCATION RECORDS CAN’T BE SHARED

IDEA regulations specifically provide for the release of personally identifiable information in the education record, without parental consent, to personnel participating in providing the special education. [69] For example, parental consent is not needed for a student’s IEP to be shared with school officials involved in implementing it. However, there are two special confidentiality rules that apply to children receiving services under the IDEA.

First, parental consent is required to release education records for children receiving services under IDEA when the child will enroll or has enrolled in a private school that is not in the school district of the child’s parents. [70] This IDEA provision preempts FERPA’s enrollment exception for this particular circumstance.

Second, records that are not part of the education record can only be shared with parental consent, unless they are shared with “participating agencies,” and that participating agency is not providing “transition” services. [71] Here, the IDEA contemplates that some information required to comply with its regulations will fall outside of the education record. When that happens, it may be shared with participating agencies as long as those agencies are not providing services to assist a young person in transitioning to postsecondary education as part of the child’s IEP. [72]

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Parents under IDEA versus FERPA           

Under the IDEA, “parent” is defined as a biological or adoptive parent, a foster parent (unless State regulations prohibit this), a guardian authorized to act as the child’s parent, an individual acting in the place of a parent (e.g., a relative) with whom the child lives, an individual who is legally responsible for the child’s welfare (but not any employee of a child welfare agency) or a surrogate parent appointed in accordance with IDEA. [73] If a court has not limited the biological/adoptive parent’s authority to make education decisions, the early intervention agency or school district must recognize that parent as the person authorized to consent to sharing records so long as he or she is “attempting to act as the parent.” [74] If the parent is not “attempting to act as the parent” (for example, is not responding to notices or attending meetings), and the child has a foster parent or one of the other potential “IDEA parents” listed above, the early intervention agency or the school district must then treat that person as the child’s IDEA parent. [75]

While the definition of parent under FERPA does not conflict with the IDEA, it is worded more broadly and interpreted to allow for simultaneous parents. FERPA defines a parent more generally to include “a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.” [76] The regulations explain that this definition allows various parents, custodial and non-custodial, to simultaneously have rights as a “parent” unless a legally binding document specifically states otherwise. [77] IDEA, meanwhile, does not allow multiple types of parents under its definition to simultaneously act as the IDEA parent.

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Minor’s Consent under IDEA

Under FERPA, students control their own education records at age 18 or when they enter post-secondary education. [79] Under the IDEA, the rule is the same for students with disabilities. [80]

However, under the IDEA the age when a student can control the creation and implementation of their special education services is different than the age when a student can access and disclose his or her records. Under the IDEA, the authority to make decisions related to the substance of one’s special education transfers at the age of majority. The age of majority varies based on state law. [81] For example, in Pennsylvania the age of majority is 21 unless a statute specifies otherwise. Consult state law to determine that state’s age of majority.

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THE PROTECTION OF PUPIL RIGHTS AMENDMENT (PPRA)

The Protection of Pupil Rights Amendment (PPRA) requires schools receiving U.S. Department of Education (ED) funding [82] to notify parents at least annually at the beginning of the school year of their rights under PPRA, including the right to consent prior to their child’s participation in any survey, analysis, or evaluation funded in whole or part by ED that reveals information concerning any of the following:

• Political affiliations
• Mental and psychological problems potentially embarrassing to the student and his/her family
• Sex behavior and attitudes
• Illegal, anti-social, self-incriminating, and demeaning behavior
• Critical appraisals of the respondents’ close family members
• Legally privileged or analogous relationships, such as those of lawyers, physicians, and ministers
• Income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such a program). [83]

The parental notice must also include the right to opt out of any survey – regardless of who funds it – that contains questions pertaining to one or more of the eight protected areas listed above. In addition, PPRA directs schools to develop policies, in consultation with parents, to ensure student privacy and to specify parents’ access to survey and evaluation instruments prior to their administration. [84]

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General Resources

Federal Law Statutory Compilation: Confidentiality, Privacy, and Information Sharing Provisions - This table catalogues key sections of FERPA, HIPAA, and the Confidentiality of Alcohol and Drug Abuse Patient Records of the Public Health Service Act. For each key component of legislation, the table includes excerpted text and a brief summary highlighting the real world implications of the act. Resource available at http://www.promoteprevent.org/sites/www.promoteprevent.org/files/resources/federal_law_statutory_compilation_2012.pdf.

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Education Records Resources

Legal Center for Foster Care and Education – The Legal Center is a national, nonprofit that aims to use the law to improve the educational outcomes of children in foster care. Among other topics, the Legal Center provides resources on federal (and state laws) pertaining to education records. Resources available at http://www.fostercareandeducation.org/AreasofFocus/DataInformationSharing.aspx

The Data Quality Campaign (DQC) – DQC is a national, nonprofit organization that focuses on empowering educators, parents, and policymakers with quality information to make decisions that ensure students achieve their best. Their website has numerous resources on laws and regulations that affect students. Resources available at http://dataqualitycampaign.org

Revised FERPA Regulations: An Overview for Parents and Students - This pamphlet highlights the changes made to FERPA in December 2011 regarding parent access to their child's education records. It includes a discussion about student safety and the directory information exception, as well as the evaluation of educational programs with the studies exceptions. Resource available at http://www2.ed.gov/policy/gen/guid/fpco/pdf/parentoverview.pdf

Sharing Information: A Guide to FERPA and Participation in Juvenile Justice Programs - This is a guide for information exchange between public education, law enforcement, and the juvenile justice system. It provides a section specifically for information sharing considerations between schools and other agencies, and another section on multiagency agreements to facilitate cooperation. Resource available at https://www.ncjrs.gov/pdffiles/163705.pdf

Family Policy Compliance Office (FPCO) - The Family Policy Compliance Office (FPCO) is responsible for implementing FERPA. This web page offers guidance for parents and students, provides model notifications and forms, and lists an online collection of court cases. Resource available at http://www2.ed.gov/policy/gen/guid/fpco/index.html

Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Colleges and Universities - This brochure outlines different information sharing situations in higher educational institutions that are affected by FERPA. Some of these scenarios include health or safety emergencies, transfer of education records, sharing of disciplinary records, and disclosure to parents. Resource available at http://www2.ed.gov/policy/gen/guid/fpco/brochures/postsec.html

Parents Guide to FERPA: Rights Regarding Childrens Education Records - This guide for parents describes how FERPA affects their access to their child’s student records. It discusses what other parties may have access to a student’s records, “directory information”, and how FERPA applies to a student once they turn 18 or if they enroll in higher education institutions. Resource available at http://www2.ed.gov/policy/gen/guid/fpco/brochures/parents.html

Solving the Data Puzzle: A How-To Guide on Collecting and Sharing Information to Improve Educational Outcomes for Children in Out-of-Home Care - This guide explains important legal and policy considerations for sharing information of youth in out-of-home care, as well as examples of jurisdictions that successfully share information to improve the welfare of youth while maintaining confidentiality of information. Included is a specific chapter on collaboration and information exchange for child welfare and education systems. Resource available at http://www.jlc.org/resources/publications/solving-data-puzzle

How The Uninterrupted Scholars Act Helps Child Welfare Staff Advocate For Youth In Care? – This FAQ explains the USA amendments to FERPA. The resource was produced by the Legal Center for Foster Care and Education, which is a collaboration between the ABA Center on Children and the Law, the Education Law Center (PA), and the Juvenile Law Center. Resource available at http://www.fostercareandeducation.org/DesktopModules/Bring2mind/DMX/Download.aspx?portalid=0&EntryId=1833&Command=Core_Download

Understanding FERPA: Sharing Education Records to Improve Outcomes for Children in the Juvenile Justice System – This publication explores how education records can be responsibly shared with juvenile justice staff under one relevant federal law, the Family Educational Rights and Privacy Act (FERPA). The publication provides an overview of FERPA and a description of the provisions most pertinent to information-sharing with the juvenile justice system. Its appendix also provides examples of state authorizations of FERPA that may affect juvenile justice involved youth. Resource available at

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PPRA Resources

Protection of Pupil Rights Amendment (PPRA) Overview - This resource, produced by the U.S. Department of Education, provides a general overview of this statute. Resource available at

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