Jeanne M. Kincaid, Esq. Drummond Woodsum & MacMahon 40 Pleasant Street

1. I’VE GOT A SECRET OR DO I ?!? Jeanne M. Kincaid, Esq. Drummond Woodsum & MacMahon 40 Pleasant Street Portsmouth, New Hampshire 03801 603/433-3317 jkincaid@dwmlaw.com www.dwmlaw.com

2. Issues • Records • Disclosure • Access • Privilege

3. Records • Family Educational Rights and Privacy Act (FERPA) AKA Buckley Amendment - 20 USC § 1232g and 34 CFR Part 99 • State laws may also apply

4. What is a Record? • Any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche

5. Example • An email message is a “record”

6. What Is Not An Education Record • Records kept in sole possession of maker and not accessible to others

7. Example • Personal notes in your drawer

8. Contrast • A file that others may access

9. What Is Not An Education Record • Treatment records - made or maintained by: • physician, psychiatrist, psychologist or other recognized professional or paraprofessional • made, maintained or used only in connection with treatment and • disclosed only to individuals providing treatment

10. What Is Not Treatment? • Records reflecting remedial educational activities or activities that are part of a program of instruction are education records; not treatment records

11. Result • Student has no right to access treatment records • FERPA does not govern privacy of treatment records • State privacy laws likely do

12. Query? • Is a learning disabilities assessment forwarded to the disability services office a treatment record? • NO! • Impact – it is an educational record

13. Contrast • A psychological assessment received by the university’s counseling center of a client it is providing therapy

14. Observations • Personal observations may be discussed with others if not based on information contained in a student record - consent of student not required

15. Conduct in Educational Records • Educational records may contain information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student, other students or other members of the school community

16. What is Disclosure? • To permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written, or electronic means

17. Examples • Email communication • Phone call • Fax

18. Warning! • If the information you wish to disclose comes from an educational record, FERPA applies

19. Record Disclosure • Is it an education record? • Records maintained by institution or its agent • Compare treatment records

20. When Is Consent Not Required? • institution discloses to school officials, including teachers, that it has determined have a “legitimate educational interest” • disclosure is in connection with a health or safety emergency when necessary to protect student or others • disclosure is to another institution where the student seeks or intends to enroll or where s/he is actually enrolled

21. Disclosure to Teachers • The Act does not prohibit disclosure of such information to teachers and school officials who have legitimate educational interests in the student’s behavior • The Act does not prohibit disclosure of such information to teachers or school officials in other schools who have legitimate educational interests in the student’s behavior

22. Health or Safety Emergency • Standard: In light of the “totality of the circumstances”, institution determines there is an “articulable and significant threat to the health or safety of a student or other individuals”, disclosure is permitted to anyone deemed necessary to prevent the harm. • Record of disclosure must be kept

23. Parental Disclosure • If student is 18 or attends a postsecondary institution, disclosure to the parent is only permitted if • consent of student • student is claimed as dependent on parent’s income tax forms, or • Health or safety emergency • Disclosure is permissible - not required

24. Rights of Student • Inspect and review education records • Seek amendment of records believed to be inaccurate, misleading, or otherwise in violation of student’s privacy rights • Right to hearing • Consent to disclosure • But note the exceptions • Copy of records disclosed that student authorized, if requested

25. Institutional Responsibility • Define who is considered a “school official” • You may want to define this phrase very broadly, to include third parties not directly employed by the institution • What is meant by “legitimate educational interest” • Annual notice to include above and when disclosure is permitted to other institutions

26. Other Laws • Section 504 - contains explicit confidentiality requirement • ADA • Titles II & III are silent • Title I (employment) contains strict requirements

27. Section 504 • Preadmission inquiries are generally prohibited • Affirmative action exception • “. . . after admission, may make inquiries on a confidential basis as to [disabilities] that may require accommodation.”

28. ADA Title I Requirements • Separate files • Disclosure only permitted to: • Supervisors [restrictions & accommodations] • First aid personnel [if disability might require emergency treatment] • Government officials

29. Other Laws • State law privilege • Dictated by position (e.g., psychologist) • Most providers of disability services have no privilege

30. What Does a Privilege Do? • Restricts disclosure of communications made between the parties • much broader than “records” • Many states have exceptions based on imminent harm to persons and/or property

31. Tips for Disability Service Providers • Check to make sure your college has defined who is a school official and what is a legitimate educational interest • If the student signs a consent form to release information, you are home free • But even then - carefully consider what information should be disclosed

32. Tips for Disability Service Providers • If the record is an educational record and the student refuses to authorize its release • Is the disclosure to a “school official”? • Does the official have a legitimate educational interest? • Is there a health or safety emergency justifying disclosure

33. Tips for Disability Service Providers • Lock and key - keep information locked up and ensure information is protected to maximum extent • Check catalogs and brochures - do not guarantee confidentiality - you may not be able to honor it

34. Suggested Language • The Office for Students with Disabilities is committed to keeping disability-related information confidential in accordance with state and federal laws

35. Tips for Disability Service Providers • Remember that access to records need not be immediate

36. Final Thought • Do not make these decisions alone • When in doubt, consult supervisor or institution’s legal counsel