Family EducationalFamily Educational Rights And Privacy Act Rights And Privacy Act of 1974 of 1974

FERPA at MSU

What is FERPA?What is FERPA?

Commonly known as the Buckley Amendment

Applies to educational institutions receiving federal funds administered by the U.S. Department of Education

Provides rights to access to and privacy of student education records

Who has FERPA rights?Who has FERPA rights?

At MSU, the rights belong to the student: any individual who is or has been in attendance at MSU and on whom MSU maintains education records

Rights generally belong to the parent; however, they transfer to the student when she/he becomes an ‘eligible student’

ELIGIBLE STUDENT is a student who has reached 18 years of age OR is attending a postsecondary education institution

Notification requirementsNotification requirements

MSU must provide currently enrolled students with a notice of rights and procedures to enforce their FERPA rights

MSU has choice in manner of notification and currently uses the Student Handbook, available in hard copy and on-line

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What are the rights of What are the rights of inspection and review of inspection and review of education records?education records?

An eligible student must be given the opportunity to inspect and review his education records

MSU must provide records within a reasonable time but not more than 45 days

MSU must respond to reasonable requests for record explanations and interpretations

Are there limitations on the Are there limitations on the right to inspect and review right to inspect and review records?records?If records contain information on more

than one student, student may review portion only related to self

Postsecondary schools may restrict -Financial records of parents

-Confidential letters and recommendations if student has waived inspection and info is related to admission, employment or honorary recognition

A record is info recorded in any way including handwriting, print, computer, video, audio, film, microfilm, microfiche

Education records are records directly related to the student

AND areRecords maintained by an educational

institution or by a party acting for the institution

What are education records?What are education records?

What records would not be What records would not be included?included? Records of instructional, supervisory, and

administrative personnel ancillary to those persons that are kept in the sole possession of the maker of the record, and are not accessible or revealed to any other persons except a temporary substitute for the maker of the records

Records of the law enforcement unit when acting as police

Records not included (cont.)Records not included (cont.)Employee records except for records

relating to a person in attendance at MSU who is employed as a result of his status as a student (work study/ graduate assistant)

MSU health records made/maintained by a health care professional in connection with treatment of the student and disclosed only to those providing treatment

Records only containing info about a person after she is no longer a student at MSU (alumni records)

Are there any rights to amend Are there any rights to amend education records ?education records ?Student may request amendment if he

believes his records contain info that is inaccurate, misleading, or in violation of the student’s rights of privacy

MSU must decide within reasonable time if it will honor request to amend

If MSU decides negatively, then must inform student so and of right to a hearing

When is prior consent required When is prior consent required for MSU to disclose info?for MSU to disclose info? Except for specific exceptions, a student must

provide a SIGNED and DATED written consent prior to MSU disclosing personally identifiable info from the student’s education records

Consent MUST specify the records to be disclosed, the purpose of the disclosure, the identity of the party/class to whom disclosure may be made

If requested, MSU must provide student copy of records disclosed

What is personally identifiable What is personally identifiable information?information? Personally identifiable information includes, but

is not limited to: Student’s name Name of student’s parent or family member Address of student or student’s family Personal identifiers: social security number or

student identification number List of personal characteristics or other

information making student’s identity easily traceable

When is prior consent not When is prior consent not required?required?

If disclosure is to other officials at MSU who have a legitimate educational interest

If disclosure is to officials of another institution where the student seeks or intends to enroll

If disclosure is to Comptroller General of U.S., the Secretary of US Dept of Education, state and local authorities

If disclosure is result of student’s application for or receipt of financial aid if info is necessary to determine eligibility, amount, or conditions for aid or to enforce the terms/conditions of the aid

If disclose to parents, disciplinary action for drug/alcohol violation of student under 21

Disclosures (cont.)Disclosures (cont.)If disclosure is to State and local

authorities under certain situations pursuant to state statute adopted by 1974

If disclosure is to organizations conducting studies for MSU for testing, administering student aid programs, improving instruction if identifying info kept confidential within organizations and info destroyed

If disclosure is to accrediting organization to carry out accrediting functions

If disclosure is to comply with lawfully issued judicial order or subpoena

Disclosures (cont.)Disclosures (cont.) If disclosure is in connection with a health or

safety emergency if it is necessary to protect health or safety of student or other individuals (This section is to be strictly construed.)

If disclosure is to the student If disclosure is to alleged victim of crime of

violence regarding results of a disciplinary proceeding

Except for disclosures pursuant to subpoena and disclosure to a student, MSU is not required to make the other disclosures

Do we have to keep records Do we have to keep records concerning requests and concerning requests and disclosures?disclosures? MSU must maintain record for each request for

access and each disclosure of information from education records

Shall be maintained with student record so long as records maintained and contain name of requestor and the legitimate reason for the request/disclosure

If further disclosure authorized, need those names and legitimate interests for obtaining

Are there exceptions to keeping Are there exceptions to keeping a record of request/disclosure?a record of request/disclosure?Disclosure to eligible studentDisclosure to a school official with

legitimate educational reason Disclosure to person as the result of a

written consent from the studentDisclosure to one of directory informationDisclosure pursuant to subpoena with

directive that response to subpoena is not to be disclosed

Are there limitations to further Are there limitations to further disclosure of information?disclosure of information?

MSU may disclose only with understanding records will not be further disclosed without consent of student

Recipients may use info only for purpose for which disclosure was made

Does not apply to court orders or subpoenas, directory information, or disclosures to the student

Except for the above, MSU should notify of no additional disclosure to be made

If U.S. DOE determines a party improperly made additional disclosure, MSU can be ordered not to release any info to that person for five years

How does MSU disclose in a How does MSU disclose in a health or safety emergency?health or safety emergency?May disclose to appropriate parties in

connection with an emergency if info is necessary to protect health or safety of student OR other individuals

May include in student record appropriate information concerning disciplinary action taken against student for conduct that posed significant risk to safety/well-being of student, other students or school community

Health/safety disclosure (cont.)Health/safety disclosure (cont.)

May disclose to MSU teachers/school officials who have legitimate educational interests in behavior of the student

May disclose to teachers and school officials of other schools with legitimate educational interest in the student’s behavior

RIGHT OF DISCLOSURE FOR HEALTH/SAFETY ARE STRICTLY CONSTRUED

Are there rules for directory Are there rules for directory information release?information release?MSU required annually to give students IN

ATTENDANCE public notice of what MSU has designated as directory info

MSU required to allow student to refuse for MSU to designate any or portion of the info about that student as directory (Buckley flag)

May disclose directory info about former students without giving the notice to them

What is directory info at MSU ?What is directory info at MSU ?NameHome/Local AddressHome/Local Telephone NumberElectronic Mail AddressMajor Field of StudyEnrollment Status (grad/undergrad; full-

time/part-time)

Directory Info (cont.)Directory Info (cont.)Weight/Height of Members of Athletic

TeamsDates of AttendanceDegrees, Honors and Awards ReceivedMost Recent Previous Education Agency

or Institution AttendedParticipation in Officially Recognized

Activities and Sports

May a student file a complaint?May a student file a complaint?

Student may file a complaint with the Family Policy Compliance Office of the U.S. Dept. of Education

Complaint usually needs be filed within 180 days of violation

Office will investigate each complaint If Office determines MSU has not complied, it

will direct steps MSU must take to comply and give period of time MSU could voluntarily comply

What if MSU does not comply?What if MSU does not comply?

DOE may withhold further payments under an applicable federal program

DOE may issue a cease and desist orderDOE may terminate right for MSU to

receive funding under any applicable program (funds made available under any program administered by the U.S. Department of Education—includes Pell Grants and guaranteed student loans)

Do other laws affect FERPA?Do other laws affect FERPA?

USA Patriot Act created new exception for Court to issue an order requiring production of records (with no notice to student or record keeping) for investigating or prosecuting terrorism, domestic or international

Immigration laws provide certain overrides requiring MSU to produce certain info on foreign students

Is there case law re: FERPA ?Is there case law re: FERPA ?

Miami University case (6th Cir. 2002) Disciplinary records are education recordsFalvo case (U.S. Sup. Ct. 2002) Students can grade each others papers Gonzaga University case (U.S. Sup.Ct.

2002) No private right of action to enforce FERPA, only enforcement is DOE

Does Kentucky have a Does Kentucky have a FERPA?FERPA?KRS 164.283 provides confidentiality for

student academic records (Only covers academic records)

Many exemptions, some of which are broader than FERPA and require disclosure

FERPA, as a federal law, takes precedence

CONCLUSIONSCONCLUSIONS

Unless directory info, assume education record is protected

Require release or KNOW request falls within an exclusion to privacy

If directory info, be certain student has not opted for a Buckley Flag

If receive subpoena, contact General Counsel immediately