Understanding the Family Educational Rights and Privacy Act (FERPA)

1. Understanding the Family Educational Rights and Privacy Act (FERPA) Tim Keefe Dean/Associate Vice President of Student Affairs Plymouth State University

2. Understanding the Family Educational Rights and Privacy Act (FERPA) WHEN IN DOUBT DON’T GIVE IT OUT!!!!!

3. Where to Find Information • Office of Compliance, Student Policy and Judicial Affairs at http://www.plymouth.edu/office/student-life/publications-and-other-resources/ • U.S. Department of Education Family Policy Compliance Office: http://www.ed.gov/policy/gen/guid/fpco/index.html • AACRAO Compliance Page: http://www.aacrao.org/federal-relations-and-public-policy/compliance/ferpa.aspx

4. Program Outline • What “Rights” does FERPA provide? • Who has those rights? • What happens if the rights are violated? • To what kinds of records does FERPA apply? • Special Issues • Case Studies

5. Student Rights Under FERPA • ACCESS to EDUCATION RECORDS (Inspect and Review) • Challenge / Amend misleading or inaccurate information • Control disclosure of personally identifiable information to third parties without consent • Notice

6. Who Has FERPA Rights? • Students defined as “an individual who is or has been in attendance at an educational agency or institution and regarding whom the institution maintains education records • Parents: Rights vest in parent until student EITHER turns 18 or attends postsecondary institution

7. Who has FERPA Rights ?(cont.) • The former student / alum retains FERPA rights • Who is “in attendance”? --- institution defines • Applicants? • Admits? • Admit-comings? • Orientation? • First-Day of Class

8. When Does FERPA Apply? • Applicants? • Admits? • Admit-comings? • Orientation? • First-Day of Class? 0% 0% 0% 0% 0%

9. Violations of FERPA • There is no private right of action under FERPA (per 2002 U.S. Supreme Court decision in Gonzaga University v. Doe) • Enforcement is by Family Policy Compliance Office • Threat of loss of federal funds for institution with “policy or practice” of violating FERPA • Requests for remediation is typical resolution

10. What Records Does FERPA Cover? "EDUCATION RECORDS" The term means those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution. Note: includes any media (handwriting, audio tape, paper or electronic storage)

11. Records that are NOT Education Records • Sole Possession Records {personal notes} • Law Enforcement Records • Employment Records • Medical Treatment Records • Alumni Records

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

13. Law Enforcement Records • Applies to police or security forces designated by institution to enforce laws and maintain security • Means records that • Created by law enforcement unit • Created for law enforcement purpose • Maintained by law enforcement unit

14. Law Enforcement Records • Does not include • Records created by law enforcement unit but maintained by another component of institution • Records created for non law enforcement purpose (e.g. student disciplinary proceeding) Education records do not lose protected status if in possession of law enforcement unit

15. Medical Treatment Records Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are: (i) Made or maintained by a physician, psychiatrist, psychologist… (ii) Made, maintained, or used only in connection with treatment of the student; and (iii) Disclosed only to individuals providing the treatment.

16. The Student’s Right of Access • This is a right to inspectand review • Respond to a request within 45 days • Respond to reasonable requests for explanation or interpretation • Copies required only if failure to provide copies would effectively deny the right to inspect and review • Reasonable copying fees OK absent indigent status (no retrieval fees)

17. Limitations on Student Right of Access • Access to records that are “education records” as defined only • Students cannot access • Financial records of parents from fin aid file • Letters of recommendation where access waived • Documents containing information on other students also (explore redaction)

18. Student Right to Challenge / Amend • Challenge on basis of • Inaccurate • Misleading • Otherwise in violation of privacy of student Requests that are denied afford student the right to a hearing within University • Either amend record; or • Afford student the right to include statement

19. Student Right to Control Disclosure • General Rule: Student written consent required to disclose personally identifiable information from education record of student • “Rule” is subject to 15 enumerated exceptions (See 34 CFR 99.31)

20. Personally Identifiable Information • Distinguish from Directory Information • Includes but is not limited to: • Name • Names of parents / family members • Address • Personal identifier • Information that would make identity easily traceable

21. Requirements for Student Consent • Prior consent • In writing • Signed and dated (electronic signature OK) • Specify records to be disclosed • Identify party / parties to whom disclosure may be made • Revocable in writing • Student can request copy of records disclosed

22. Exceptions to Prior Consent • To other school officials with a legitimate educational interest • To officials of another school where student seeks or intends to enroll • To authorized representatives of • Comptroller General of U.S. • Secreatary of Education • U.S. Attorney General • state and local educational authorities

23. Exceptions to Prior Consent • To appropriate officials in connection with student application for / receipt of financial aid • To state / local officials by statute • To organizations conducting studies on behalf of institution • To accrediting organizations • To parents of a dependent student

24. Exceptions to Prior Consent • To comply with judicial order / valid subpoena • In connection with health / safety emergency • Directory Information • To parent of “non-eligible student” (K-12) • Final results of disciplinary proceeding to victim of crime of violence or non-forcible sex offense

25. Exceptions to Prior Consent • Final results of certain disciplinary proceedings (Foley Amendment) • To parents concerning alcohol violation by student under 21 (Warner Amendment) NOTE: Permissive as opposed to required disclosures

26. Exceptions to Prior Consent - recordkeeping • Must keep a record of disclosures made to third parties EXCEPT: • To student • To other school officials • To others as directed by student • By subpoena where no notice required

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

28. Disclosure to Other School Officials • What is a legitimate educational interest? • Not defined in FERPA. Institution defines this term in its annual notice (required under FERPA to be issued to students annually) • Model notice defines as: “ a school official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility.”

29. Disclosures to Parents • PERMISSABLE under FERPA if “dependent”, though you must make some effort to verify dependency • PSU Parental Notification Policy limits extent to which we disclose to parents • Distinguish University Policy from “the law”

30. Disclosures to Other Institutions • Must make reasonable attempt to notify student of disclosure unless it is by their request • Annual Notice must alert students of the possibility • Give copy of record to student upon request • Give student a hearing to challenge

31. Directory Information • Defined by University in Annual Notice • Students have right to request that Directory Information be kept confidential • To do so a student must meet with the Dean of Students as per policy • Election survives graduation / separation unless changed in writing

32. 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

33. Subpoenas • Student generally has right to notice in advance of response • Exceptions for certain law enforcement subpoenas • Distinguish privileged information from “confidential information”, or protected • Provide copies promptly the Dean of Students

34. Health and Safety Emergencies • May provide notice to appropriate third party • If knowledge necessary to protect health or safety of student or others • University must document the reason and materials disclosed

35. Disclosures Related to Student Discipline • PSU does notify parents of alcohol/drug violations subject to Parental Notification Policy • PSU generally does not disclose final results of disciplinary proceedings, except to the victim, under Foley Amendment which is limited to • Crimes of violence / non-forcible sex offense • Sanction and violation • No info about other students beyond perpetrator NOTE: Any disclosure should come from Student Conduct office

36. Re-disclosure by Third Parties • Third party may not re-disclose to others without student consent • Best Practice: include notice of this when providing records to third party • No institutional responsibility to enforce • Non-compliant third party can be denied future access to records for 5 years

37. Student Right to Notice • Institution must provide annual notice • See notices at: http://www.plymouth.edu/office/student-life/publications-and-other-resources/

38. Special Issues Faculty Practices (Grading and Rosters) Inappropriate practices include: • posting on wall / web by student ID or portion of student ID (e.g. last 4 digits) where students can view more than their own record • any posting on wall where roster remains in alphabetical order (Roster with names itself a violation – code must be used) • the box of exams and papers in the hallway

39. For purposes of the case studies and “Quiz” questions, assume you are in the office who creates/maintains the records being requested.

40. For purposes of the case studies and “Quiz” questions, assume you are in the office who creates/maintains the records being requested. Why??? • Shouldn’t matter since I have authorized access through Banner. • There may be a written release I don’t know of. • Only the creator or controller of a record is authorized to make the release. 50% 0% 50%

41. 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.

42. Since Kevin is no longer a student, it is fine to tell the parents what they want to know. • True • False

43. “I can tell you that Kevin is not currently enrolled at PSU.” • Complies with FERPA • Violates FERPA

44. If I received a call like this at work, I would…. • Refer the parents to the Dean of Students office • Offer to fly to Florida to commiserate with the parents • Hang up quickly • Ask if they would like fries with their order then laugh hysterically 50% 0% 0% 50%

45. 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?

46. If I got this call I would…..(click all that are correct) • Refer the father to the Registrar • Refer to financial aid to discuss dependency status. • Look up Frank’s grades and tell the Dad. • Refer to Dean of Students.

47. 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?

48. You should NOT….. • Refer to Dean of Students. • Kindly explain your answer of “no way”. • Suggest the faculty member take the online FERPA quiz. • Rat him out to his daughter.

49. 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?

50. Relative posting lists with grade, FERPA is clear that this is always a violation • True • False 100% 0%