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Thursday, April 5, 2012
FOI Toolbox

Navigate the FERPA nuisance

By Carolyn S. Carlson

It’s the bane of every education reporter’s life, and a nuisance to anyone trying to pry information from a school board, college or university: the 1974 Family Education Rights and Privacy Act.

FERPA is a federal privacy law that many school officials have taken to mean that any piece of paper or film with a student’s name on it is off limits to the public. FERPA is broad and does block disclosure of quite a bit of information maintained by education institutions, but not everything. Reporters need to understand the law in order to know when school officials are blowing smoke.

SPJ’s Freedom of Information Committee put together a Guide to FERPA. For those wanting to know the details on how the U.S. Department of Education enforces the law, you might want to peruse the most recent, though still unofficial, regulations, which are available online here.

Here are a few basics about the law:

FERPA protects the confidentiality of student educational records and limits their disclosure, while guaranteeing students’ rights to access their records. It applies to any public or private elementary, secondary or post-secondary school and any state or local education agency that receives federal funds. The threat for violations is loss of federal funding.

First, FERPA gives students (and their parents, for students younger than 18) the right to review their own education records, request corrections, stop the release of personally identifiable information and obtain a copy of their school’s policy regarding access to educational records.

Second, FERPA threatens the loss of federal funds from any school that releases “education records (or personally identifiable information contained therein other than directory information) of students” without the written consent of either the student or his or her parents.

So, what are “education records”? FERPA defines them as “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.”

If the school doesn’t actually “maintain” the document, then it’s not an education record, and there are some exceptions noted in the law, such as directory information.

Schools can release this information about a student:

name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate; full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees; honors and awards received; most recent educational agency or institution attended

However, individual students may withhold disclosure of such so-called directory information if they so choose. If students have not opted out of directory information disclosure, good reporters will have the means to contact the students directly to ask for their permission to get access to other documents containing information about them.

Reporters can also ask for aggregate data that doesn’t include what FERPA refers to as “personally identifiable information” about any students.

A regulation adopted in 2008 has limited access to aggregate data if schools have reason to believe that the person seeking the aggregate or general data knows the identity of the student whose record is being sought. A reporter looking for information about a newsworthy incident would not be able to obtain the information even if he makes a more general request for records.

But FERPA does allow the release of aggregate and statistical data without the consent of students or parents if the identities of the students involved are not easily traceable.

Another exception to FERPA’s privacy provisions is the law enforcement records exception.

When covering campus crime, records created by campus police are not considered “education records” even if they identify students.

Campus police departments are always trying to redact student names from crime incident reports, citing FERPA. This is only valid if the redacted record is being prepared for the campus disciplinary office; then it is considered created for a non-law-enforcement purpose and it doesn’t fall under the law enforcement exemption.

Generally speaking, disciplinary records are not discloseable under FERPA unless the school determines that the student’s conduct represents a significant risk to the school community.

There is an exception with disciplinary records involving crimes of violence or non-forcible sex offenses. Schools may disclose the results of disciplinary procedures to the victim, even if the alleged perpetrator is found not guilty. Schools also may disclose the results of such disciplinary procedures to the public, but only if the perpetrator is found guilty.

Finally, records maintained by the school about alumni are not covered by FERPA and may be disclosed.

Carolyn S. Carlson is an assistant professor of communication at Kennesaw State University, a member of the SPJ Freedom of Information Committee and a former national president of SPJ.

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