Understanding the Family Understanding the Family Educational Rights and Educational Rights and

Privacy Act (FERPA)Privacy Act (FERPA)

Tim KeefeTim Keefe

Dean/Associate Vice President of Student AffairsDean/Associate Vice President of Student Affairs

Plymouth State UniversityPlymouth State University

Understanding the Family Understanding the Family Educational Rights and Educational Rights and

Privacy Act (FERPA)Privacy Act (FERPA)

WHEN IN DOUBT DON’T GIVE IT

OUT!!!!!

Where to Find InformationWhere to Find Information Office of Compliance, Student Policy and Judicial Office of Compliance, Student Policy and Judicial

Affairs at Affairs at http://www.plymouth.edu/office/student-life/publications-and-other-resources/

U.S. Department of Education Family Policy U.S. Department of Education Family Policy Compliance Office: Compliance Office: http://www.ed.gov/policy/gen/guid/fpco/index.html

AACRAO Compliance Page: AACRAO Compliance Page: http://www.aacrao.org/federal-relations-and-public-policy/compliance/ferpa.aspx

Program OutlineProgram Outline

What “Rights” does FERPA provide?What “Rights” does FERPA provide? Who has those rights?Who has those rights? What happens if the rights are violated?What happens if the rights are violated? To what kinds of records does FERPA To what kinds of records does FERPA

apply?apply? Special IssuesSpecial Issues Case StudiesCase Studies

Student Rights Under FERPAStudent Rights Under FERPA

1.1. ACCESS to EDUCATION RECORDS ACCESS to EDUCATION RECORDS (Inspect and Review)(Inspect and Review)

2.2. Challenge / Amend misleading or Challenge / Amend misleading or inaccurate informationinaccurate information

3.3. Control disclosure of Control disclosure of personally personally identifiable informationidentifiable information to third to third parties without consentparties without consent

4.4. NoticeNotice

Who Has FERPA Rights?Who Has FERPA Rights?

Students Students defined as “an individual who is defined as “an individual who is or has been in attendance at an or has been in attendance at an educational agency or institution and educational agency or institution and regarding whom the institution maintains regarding whom the institution maintains education recordseducation records

ParentsParents: Rights vest in parent until : Rights vest in parent until student EITHER turns 18 or attends student EITHER turns 18 or attends postsecondary institutionpostsecondary institution

Who has FERPA Rights ?Who has FERPA Rights ?(cont.)(cont.)

1.The former student / alum retains FERPA rights

2.Who is “in attendance”? --- institution defines

• Applicants?

• Admits?

• Admit-comings?

• Orientation?

• First-Day of Class

When Does FERPA Apply?When Does FERPA Apply?

1.1. Applicants?Applicants?

2.2. Admits?Admits?

3.3. Admit-comings?Admit-comings?

4.4. Orientation?Orientation?

5.5. First-Day of Class?First-Day of Class?

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Violations of FERPAViolations of FERPA

There is no private right of action under There is no private right of action under FERPA (per 2002 U.S. Supreme Court FERPA (per 2002 U.S. Supreme Court decision in Gonzaga University v. Doe)decision in Gonzaga University v. Doe)

Enforcement is by Family Policy Compliance Enforcement is by Family Policy Compliance Office Office

Threat of loss of federal funds for institution Threat of loss of federal funds for institution with “policy or practice” of violating FERPAwith “policy or practice” of violating FERPA

Requests for remediation is typical resolutionRequests for remediation is typical resolution

What Records Does FERPA What Records Does FERPA Cover?Cover?

"EDUCATION RECORDS""EDUCATION RECORDS"

The term means those records that are:The term means those records that are:

(1) Directly related to a student; and (1) Directly related to a student; and

(2) Maintained by an educational agency (2) Maintained by an educational agency or institution or by a party acting for or institution or by a party acting for the agency or institution.the agency or institution.

Note: includes any media (handwriting, Note: includes any media (handwriting, audio tape, paper or electronic audio tape, paper or electronic storage)storage)

Records that are Records that are NOTNOT Education RecordsEducation Records

1.1. Sole Possession Records Sole Possession Records {personal notes}{personal notes}

2.2. Law Enforcement RecordsLaw Enforcement Records

3.3. Employment RecordsEmployment Records

4.4. Medical Treatment RecordsMedical Treatment Records

5.5. Alumni RecordsAlumni Records

Sole Possession RecordsSole Possession Records

Records that are kept in the sole Records that are kept in the sole possession of the maker, are used possession of the maker, are used only as a personal memory aid, and only as a personal memory aid, and are not accessible or revealed to any are not accessible or revealed to any other person except a temporary other person except a temporary substitute for the makersubstitute for the maker

Law Enforcement RecordsLaw Enforcement Records

Applies to police or security forces Applies to police or security forces designated by institution to enforce laws designated by institution to enforce laws and maintain securityand maintain security

Means records thatMeans records that Created by law enforcement unitCreated by law enforcement unit Created for law enforcement purposeCreated for law enforcement purpose Maintained by law enforcement unitMaintained by law enforcement unit

Law Enforcement RecordsLaw Enforcement Records

Does not includeDoes not include Records created by law enforcement unit Records created by law enforcement unit

but maintained by another component of but maintained by another component of institutioninstitution

Records created for non law enforcement Records created for non law enforcement purpose (e.g. student disciplinary purpose (e.g. student disciplinary proceeding)proceeding)

Education records do not lose protected status Education records do not lose protected status if in possession of law enforcement unitif in possession of law enforcement unit

Medical Treatment RecordsMedical Treatment Records

Records on a student who is 18 years of age Records on a student who is 18 years of age or older, or is attending an institution of or older, or is attending an institution of postsecondary education, that are:postsecondary education, that are:

(i) Made or maintained by a physician, (i) Made or maintained by a physician, psychiatrist, psychologist…psychiatrist, psychologist…

(ii) Made, maintained, or used only in (ii) Made, maintained, or used only in connection with treatment of the student; connection with treatment of the student; andand

(iii) Disclosed only to individuals providing (iii) Disclosed only to individuals providing the treatment. the treatment.

The Student’s Right of The Student’s Right of AccessAccess

This is a right to This is a right to inspectinspect and and reviewreview Respond to a request within 45 daysRespond to a request within 45 days Respond to reasonable requests for Respond to reasonable requests for

explanation or interpretationexplanation or interpretation Copies required only if failure to provide Copies required only if failure to provide

copies would effectively deny the right to copies would effectively deny the right to inspect and reviewinspect and review

Reasonable copying fees OK absent Reasonable copying fees OK absent indigent status (no retrieval fees)indigent status (no retrieval fees)

Limitations on Student Right of Limitations on Student Right of AccessAccess

Access to records that are “education Access to records that are “education records” as defined onlyrecords” as defined only

Students cannot accessStudents cannot access Financial records of parents from fin aid Financial records of parents from fin aid

filefile Letters of recommendation where access Letters of recommendation where access

waivedwaived Documents containing information on Documents containing information on

other students also (explore redaction)other students also (explore redaction)

Student Right to Challenge / Student Right to Challenge / AmendAmend

Challenge on basis of Challenge on basis of InaccurateInaccurate MisleadingMisleading Otherwise in violation of privacy of studentOtherwise in violation of privacy of student

Requests that are denied afford student the right Requests that are denied afford student the right to a hearing within Universityto a hearing within University

a)a) Either amend record; orEither amend record; or

b)b) Afford student the right to include Afford student the right to include statementstatement

Student Right to Control Student Right to Control DisclosureDisclosure

General Rule: Student written General Rule: Student written consent required to disclose consent required to disclose personally identifiable personally identifiable informationinformation from from education education recordrecord of student of student

““Rule” is subject to 15 enumerated Rule” is subject to 15 enumerated exceptions (See 34 CFR 99.31)exceptions (See 34 CFR 99.31)

Personally Identifiable Personally Identifiable InformationInformation

Distinguish from Directory Distinguish from Directory InformationInformation

Includes but is not limited to:Includes but is not limited to: NameName Names of parents / family membersNames of parents / family members AddressAddress Personal identifierPersonal identifier Information that would make identity Information that would make identity

easily traceableeasily traceable

Requirements for Student Requirements for Student ConsentConsent

Prior consentPrior consent In writingIn writing Signed and dated (electronic signature OK)Signed and dated (electronic signature OK) Specify records to be disclosedSpecify records to be disclosed Identify party / parties to whom disclosure Identify party / parties to whom disclosure

may be mademay be made Revocable in writingRevocable in writing Student can request copy of records Student can request copy of records

discloseddisclosed

Exceptions to Prior ConsentExceptions to Prior Consent

1.1. To To other school officialsother school officials with a with a legitimate educational interestlegitimate educational interest

2.2. To officials of another school where To officials of another school where student seeks or intends to enrollstudent seeks or intends to enroll

3.3. To authorized representatives ofTo authorized representatives of Comptroller General of U.S.Comptroller General of U.S. Secreatary of EducationSecreatary of Education U.S. Attorney GeneralU.S. Attorney General state and local educational authoritiesstate and local educational authorities

Exceptions to Prior ConsentExceptions to Prior Consent

4.4. To appropriate officials in To appropriate officials in connection with student application connection with student application for / receipt of financial aidfor / receipt of financial aid

5.5. To state / local officials by statuteTo state / local officials by statute6.6. To organizations conducting studies To organizations conducting studies

on behalf of institutionon behalf of institution7.7. To accrediting organizationsTo accrediting organizations8.8. To parents of a dependent studentTo parents of a dependent student

Exceptions to Prior ConsentExceptions to Prior Consent

9.9. To comply with judicial order / valid To comply with judicial order / valid subpoenasubpoena

10.10. In connection with health / safety In connection with health / safety emergencyemergency

11.11. Directory InformationDirectory Information

12.12. To parent of “non-eligible student” (K-12)To parent of “non-eligible student” (K-12)

13.13. Final results of disciplinary proceeding to Final results of disciplinary proceeding to victim of crime of violence or non-forcible victim of crime of violence or non-forcible sex offensesex offense

Exceptions to Prior ConsentExceptions to Prior Consent

14.14. Final results of certain disciplinary Final results of certain disciplinary proceedings (Foley Amendment)proceedings (Foley Amendment)

15.15. To parents concerning alcohol To parents concerning alcohol violation by student under 21 violation by student under 21 (Warner Amendment)(Warner Amendment)

NOTE: Permissive as opposed to NOTE: Permissive as opposed to required disclosuresrequired disclosures

Exceptions to Prior Consent - Exceptions to Prior Consent - recordkeepingrecordkeeping

Must keep a record of disclosures Must keep a record of disclosures made to third parties EXCEPT:made to third parties EXCEPT: To studentTo student To other school officialsTo other school officials To others as directed by studentTo others as directed by student By subpoena where no notice requiredBy subpoena where no notice required

Disclosure to Other School Disclosure to Other School OfficialsOfficials

Defined in School Annual NoticeDefined in School Annual Notice Who is a Who is a “school official”?“school official”?

Model notice defines as: “person employed by Model notice defines as: “person employed by the university in an administrative, the university in an administrative, supervisory, academic or research, or support supervisory, academic or research, or support staff position (including law enforcement unit staff position (including law enforcement unit personnel and health staff); a person or personnel and health staff); a person or company with whom a university has company with whom a university has contracted (such as an attorney, auditor or contracted (such as an attorney, auditor or collection agent); a person serving on the collection agent); a person serving on the Board of Trustees; or a student serving on an Board of Trustees; or a student serving on an official committee, or assisting another school official committee, or assisting another school official in performing his or her tasks.”official in performing his or her tasks.”

Disclosure to Other School Disclosure to Other School OfficialsOfficials

What is a What is a legitimate educational legitimate educational interestinterest?? Not defined in FERPA. Institution defines Not defined in FERPA. Institution defines

this term in its annual notice (required this term in its annual notice (required under FERPA to be issued to students under FERPA to be issued to students annually)annually)

Model notice defines as: “ a school official Model notice defines as: “ a school official has a legitimate educational interest if the has a legitimate educational interest if the official needs to review an education record official needs to review an education record in order to fulfill his or her professional in order to fulfill his or her professional responsibility.”responsibility.”

Disclosures to ParentsDisclosures to Parents

PERMISSABLE under FERPA if PERMISSABLE under FERPA if “dependent”, though you must make “dependent”, though you must make some effort to verify dependencysome effort to verify dependency

PSU Parental Notification Policy limits PSU Parental Notification Policy limits extent to which we disclose to extent to which we disclose to parentsparents

Distinguish University Policy from Distinguish University Policy from “the law”“the law”

Disclosures to Other Disclosures to Other InstitutionsInstitutions

Must make reasonable attempt to Must make reasonable attempt to notify student of disclosure unless it notify student of disclosure unless it is by their requestis by their request

Annual Notice must alert students of Annual Notice must alert students of the possibilitythe possibility

Give copy of record to student upon Give copy of record to student upon requestrequest

Give student a hearing to challenge Give student a hearing to challenge

Directory InformationDirectory Information

Defined by University in Annual NoticeDefined by University in Annual Notice Students have right to request that Students have right to request that

Directory Information be kept Directory Information be kept confidentialconfidential

To do so a student must meet with To do so a student must meet with the Dean of Students as per policythe Dean of Students as per policy

Election survives graduation / Election survives graduation / separation unless changed in writingseparation unless changed in writing

• Awards/honors• Birthday (excluding year)• Class standing (e.g. first year, admitted to

master’s program)• Dates of attendance and/or semesters attended• Degrees and certificates conferred (including

conferral dates)• Eligibility for commencement ceremonies• Enrollment status (full-time, part-time)• Hometown• Major field of study (e.g. undergraduate major,

graduate program)• Names of previous institutions attended• Past and present participation in officially

recognized co-curricular activities (e.g. sports, music, drama)

• Photograph• Physical factors (athletes only)• PSU email address• PSU mail box number• PSU voice mail/virtual telephone number• Student name

SubpoenasSubpoenas

Student generally has right to notice in Student generally has right to notice in advance of responseadvance of response

Exceptions for certain law enforcement Exceptions for certain law enforcement subpoenassubpoenas

Distinguish privileged information from Distinguish privileged information from “confidential information”, or protected“confidential information”, or protected

Provide copies promptly the Dean of Provide copies promptly the Dean of StudentsStudents

Health and Safety Health and Safety EmergenciesEmergencies

May provide notice to appropriate third May provide notice to appropriate third partyparty

If knowledge necessary to protect health If knowledge necessary to protect health or safety of student or othersor safety of student or others

University must document the reason and University must document the reason and materials disclosedmaterials disclosed

Disclosures Related to Student Disclosures Related to Student DisciplineDiscipline

PSU PSU does notify parents does notify parents of alcohol/drug of alcohol/drug violations subject to Parental Notification Policyviolations subject to Parental Notification PolicyPSU generally does not disclose final results of PSU generally does not disclose final results of disciplinary proceedings, except to the victim, disciplinary proceedings, except to the victim, under Foley Amendment which is limited tounder Foley Amendment which is limited to

Crimes of violence / non-forcible sex offenseCrimes of violence / non-forcible sex offense Sanction and violationSanction and violation No info about other students beyond perpetratorNo info about other students beyond perpetrator

NOTE: Any disclosure should come from Student Conduct NOTE: Any disclosure should come from Student Conduct officeoffice

Re-disclosure by Third Re-disclosure by Third PartiesParties

Third party may not re-disclose to Third party may not re-disclose to others without student consentothers without student consent

Best Practice: include notice of this Best Practice: include notice of this when providing records to third party when providing records to third party

No institutional responsibility to enforceNo institutional responsibility to enforce Non-compliant third party can be denied Non-compliant third party can be denied

future access to records for 5 yearsfuture access to records for 5 years

Student Right to NoticeStudent Right to Notice

Institution must provide annual Institution must provide annual noticenotice

See notices at:See notices at: http://www.plymouth.edu/office/student-http://www.plymouth.edu/office/student-

life/publications-and-other-resources/life/publications-and-other-resources/

Special IssuesSpecial IssuesFaculty Practices (Grading and Rosters)Faculty Practices (Grading and Rosters)

Inappropriate practices include:Inappropriate practices include: posting on wall / web by student ID or portion posting on wall / web by student ID or portion

of student ID (e.g. last 4 digits) where students of student ID (e.g. last 4 digits) where students can view more than their own recordcan view more than their own record

any posting on wall where roster remains in any posting on wall where roster remains in alphabetical order (Roster with names itself a alphabetical order (Roster with names itself a violation – code must be used)violation – code must be used)

the box of exams and papers in the hallwaythe box of exams and papers in the hallway

For purposes of the case studies and “Quiz”

questions, assume you are in the office who

creates/maintains the records being requested.

For purposes of the case studies and “Quiz” For purposes of the case studies and “Quiz” questions, assume you are in the office who questions, assume you are in the office who

creates/maintains the records being requested. creates/maintains the records being requested. Why???Why???

1.1. Shouldn’t matter since I have Shouldn’t matter since I have authorized access through authorized access through Banner.Banner.

2.2. There may be a written release There may be a written release I don’t know of.I don’t know of.

3.3. Only the creator or controller of Only the creator or controller of a record is authorized to make a record is authorized to make the release.the release.

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Talking with Parents

You work in a university office. You receive a call from Dave and Kathy Smith, the parents of a former student. Their son, Kevin, was dismissed over a year ago. Dave and Kathy live in Florida and have been paying Kevin to attend PSU for every term during the last three years, including room and board and out-of-state tuition. They called to see how things were going since they don’t hear much from Kevin about school.

Since Kevin is no longer a student, Since Kevin is no longer a student, it is fine to tell the parents what it is fine to tell the parents what

they want to know. they want to know.

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1.1. TrueTrue

2.2. FalseFalse

““I can tell you that Kevin is I can tell you that Kevin is not currently enrolled at not currently enrolled at

PSU.”PSU.”

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1.1. Complies with Complies with FERPAFERPA

2.2. Violates FERPAViolates FERPA

If I received a call like this If I received a call like this at work, I would….at work, I would….

1.1. Refer the parents to the Dean Refer the parents to the Dean of Students officeof Students office

2.2. Offer to fly to Florida to Offer to fly to Florida to commiserate with the parentscommiserate with the parents

3.3. Hang up quicklyHang up quickly

4.4. Ask if they would like fries with Ask if they would like fries with their order then laugh their order then laugh hystericallyhysterically

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Access by Divorced Parents

Frank’s parents are divorced. By agreement, his mother claims him as dependent, but his father is required to pay his way through college. Frank and his mother have both refused to tell Frank’s father anything about his academic progress at State College. Frank’s father turns to the institution for help. Can the institution give him the information?

If I got this call I would…..If I got this call I would…..((click all that are correctclick all that are correct))

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1.1. Refer the father to the Refer the father to the Registrar Registrar

2.2. Refer to financial aid to Refer to financial aid to discuss dependency discuss dependency status.status.

3.3. Look up Frank’s grades Look up Frank’s grades and tell the Dad.and tell the Dad.

4.4. Refer to Dean of Refer to Dean of Students.Students.

Stephanie Student attends PSU as an undergraduate. Her father is a faculty member here. He wants to find out how Stephanie is doing in school, so he calls the registrar’s office to find out. How should you respond?

You should NOT…..You should NOT…..

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1.1. Refer to Dean of Refer to Dean of Students.Students.

2.2. Kindly explain your Kindly explain your answer of “no way”.answer of “no way”.

3.3. Suggest the faculty Suggest the faculty member take the online member take the online FERPA quiz.FERPA quiz.

4.4. Rat him out to his Rat him out to his daughter.daughter.

John Faculty is tired of taking phone calls from students to find out their grades after every examination, so he decided to post their grades on the wall outside his office door. Should he do this? If yes, are there any limitations to the manner in which he posts them?

Relative posting lists with Relative posting lists with grade, FERPA is clear that grade, FERPA is clear that this is always a violationthis is always a violation

1.1. TrueTrue

2.2. FalseFalse100%100%

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FERPA is an acronym that FERPA is an acronym that stands for:stands for:

1.1. Federal Educational Rights and Federal Educational Rights and Privacy Act Privacy Act

2.2. Faculty Educational Rights and Faculty Educational Rights and Privacy ActPrivacy Act

3.3. Family Educational Rights and Family Educational Rights and Privacy ActPrivacy Act

4.4. Fairly Entertaining Rights and Fairly Entertaining Rights and Privacy ActPrivacy Act

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Thanks for attending!

Credits go to AACRAO, countless

presentations by Leroy Rooker (formally

of the DOE Federal Compliance Office)