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FERPA FAQs

What is FERPA?

The Family Educational Rights and Privacy Act (FERPA) is a federal law that affords parents the right to have access to their children’s education records, the right to seek to have the records amended, and the right to have some control over the disclosure of personally identifiable information from the education records. When a student turns 18 years old, or enters a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student (“eligible student”). The FERPA statute is found at 20 U.S.C. § 1232g and the FERPA regulations are found at 34 CFR Part 99.

Does a spouse of an eligible student have rights with respect to that student’s education records?

No, spouses of eligible students have no rights under FERPA. Before a college or university discloses information from a student’s education records to his or her spouse, the student would have to provide written consent.

What records are exempted from FERPA?

Exempted from the definition of education records are those records which are kept in the sole possession of the maker of the records and are not accessible or revealed to any other person except a temporary substitute for the maker of the records. Once the contents or information recorded in sole possession records is disclosed to any party other than a temporary substitute for the maker of the records, those records become education records subject to FERPA. Generally sole possession records are of the nature to serve as a “memory jogger” for the creator of the record. For example, if a school official has taken notes regarding telephone or face to face conversations, such notes could be sole possession records depending on the nature and content of the notes.

A teacher personally witnesses an incident, such as one student bullying another. Can the teacher call the victim’s parents and tell them what she observed and who she saw bullying their child?

Yes. This is because FERPA prohibits the improper disclosure of information derived from education records. Therefore, information that is based on observation or hearsay and not specifically contained in education records would not be protected from disclosure under FERPA.

Can parents view a child’s post-secondary education record?

FERPA generally prohibits the nonconsensual disclosure of information derived from education records, except in certain specified circumstances. One of these exceptions permits the nonconsensual disclosure of information derived from education records to that student's parent if the student is a dependent student. Further, neither the age of the student nor the parent's status as custodial parent is relevant to determining whether disclosure of information from the education records of eligible students to a parent without written consent is permissible under FERPA. If a student is claimed as a dependent by either parent for tax purposes, then either parent may have access under this provision.

A student is claimed as a dependent student on his parents’ IRS tax form. However, the student has requested that the college not permit his parents to have access to his education records. Does the college have to honor the student’s request since the rights under FERPA have transferred to him?

No. Although the disclosure of education records to parents of a dependent student is permissive and not required, the student cannot prevent the school from disclosing the records under this exception to consent or any other exception to consent listed in FERPA.

Are educational agencies and institutions required to notify parents and eligible students of their rights under FERPA?

Yes. Educational agencies and institutions must annually notify parents and eligible students of their rights under FERPA. Specifically, schools must notify parents and eligible students of the right: to inspect and review education records and the procedures to do so; to seek amendment of records the parent or eligible student believes are inaccurate and the procedures to so do; to consent to disclosures of education records, except to the extent that FERPA authorizes disclosure without consent; and to file a complaint with FPCO concerning potential violations. Postsecondary institutions are only required to notify eligible students of their rights under FERPA. Source: 34 CFR § 99.7

Does an educational agency or institution have discretion over what education records it decides to create and keep?

Yes. FERPA does not require schools to create education records, nor does it require schools to maintain education records, unless there is an outstanding request by a parent or eligible student to inspect and review the records. Source: 34 CFR § 99.10(e)

To which educational agencies or institutions does FERPA apply?

FERPA applies to educational agencies or institutions that receive funds from programs administered by the U.S. Department of Education. By “educational agencies or institutions” we mean public schools, school districts (or “local educational agencies” (LEAs)), and postsecondary institutions, such as colleges and universities. Private and parochial schools at the elementary and secondary level generally do not receive such funding and are, therefore, not subject to FERPA.

What is an Education Record?

Education records are records that are directly related to a student and that are maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. These records include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K-12 level), student financial information (at the postsecondary level), and student discipline files. The information may be recorded in any way, including, but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and e-mail. Source: 34 CFR § 99.2 “Education Records” and “Record”

Are schools required to record the disclosure of PII from students’ education records whenever they make disclosures?

Subject to certain exceptions addressed below, schools must maintain a record of each request for access to and each disclosure of PII from the education records of each student, as well as the names of State and local educational authorities and federal officials and agencies listed in § 99.31(a)(3) that may make further disclosures of PII from students’ education records without consent. The school must maintain the record with the education records of the student as long as the education records are maintained.

For each request or disclosure, the record must include: 1) the parties who have requested or received PII from the education records; and, 2) the legitimate interest the parties had in requesting or obtaining the information (i.e., under which exception to consent was the disclosure made). The school must record additional information whenever it discloses PII from a student’s education records in connection with a health or safety emergency. There are other requirements that relate to recording further disclosures made by State and local authorities and federal officials and agencies listed under § 99.31(a)(3) with which schools should be familiar. See § 99.32(a)(4).

Schools do not have to record disclosures of PII from education records that were made to: 1) the parent or eligible student; 2) a school official under § 99.31(a)(1); 3) a party with written consent from the parent or eligible student; 4) a party seeking directory information; or 5) a party seeking or receiving records in accordance with the provisions in FERPA related to disclosures pursuant to certain types of subpoenas or court orders as set forth in § 99.31(a)(9)(ii)(A)-(C). See § 99.32(d).

Consent to Disclose Personally Identifiable Information from Education Records

What must a consent to disclose education records contain?

FERPA requires that a consent for disclosure of education records be signed and dated, specify the records that may be disclosed, state the purpose of the disclosure, and identify the party or class of parties to whom the disclosure may be made. 34 CFR § 99.30. As such, oral consent for disclosure of information from education records would not meet FERPA’s consent requirements.

May an educational agency or institution disclose education records if they are involved in litigation against a parent of student or an eligible student?

Yes, the educational agency or institution may disclose to the court the education records of the student that are relevant for the educational agency or institution to proceed with or defend against the legal action. 34 CFR § 99.31(a)(9)(iii).

May an educational agency or institution disclose information over the phone?

While FERPA does not specifically prohibit a school from disclosing personally identifiable information from a student’s education records over the telephone, it does require that the school use reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom the school discloses personally identifiable information from education records. 34 CFR § 99.31(c).

What constitutes de-identified records and information?

Records and information are de-identified once all personally identifiable information has been removed including but not limited to any information that, alone or in combination is linkable to a specific student that a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.

May parents or eligible students be provided access to education records that contain information on more than one student?

If the education records of a student contain personally identifiable information on other students, the parent or eligible student may inspect or review or be informed of only the specific information about the student in question. 34 CFR § 99.12.

Disclosure to School Officials with a Legitimate Educational Interest

Who is a “university official” under FERPA?

A “University Official” is any individual employed by the University of Massachusetts’ (“System Office’) or one of its campuses, (the University of Massachusetts, Amherst, including the Mount Ida Campus of UMass Amherst; the University of Massachusetts, Boston; the University of Massachusetts, Dartmouth, (including its school of law, University of Massachusetts School of Law, Dartmouth); the University of Massachusetts, Lowell; the University of Massachusetts Chan Medical School (individually a “Campus”) who has a legitimate educational interest in the student information. These individuals include; but, are not limited to instructors; faculty; advisers; admissions counselors; academic advisers; employment placement personnel; deans; department chairpersons; individuals serving on an official committee, such as a disciplinary or grievance committee; individuals assisting a University Official; directors; law enforcement personnel; health staff; counselors; attorneys; Advancement Office employees; the president; members of the University of Massachusetts' Board of Trustees; auditors; collection agents.

A University Official may also be an outside contractor or other agent of the University of Massachusetts’ Campus or the System Office, where the Campus or the System Office or both are outsourcing institutional services or functions, and

(a) The outside contractors or other agents are under the direct control of the Campus or the System Office or both with respect to the use and maintenance of the education records; and
(b) The outside contractor or other agent may not disclose the information to any other party without the student’s consent and may not use the information for any purpose other than the purpose for which the disclosure was made. In addition, further disclosures may only be made upon the prior written authorization of the respective Campus or System Office.

A University Official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibilities for the University of Massachusetts.

Under FERPA, may an educational agency or institution disclose education records to any of its employees without consent?

No. FERPA permits an educational agency or institution to disclose, without consent, personally identifiable information from students’ education records only to school officials within the educational agency or institution that the educational agency or institution has determined to have legitimate educational interests in the information. 34 CFR § 99.31(a)(1). Generally, 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.

What must educational agencies or institutions do to ensure that only school officials with a legitimate educational interest see protected education records?

An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is effective and that it remains in compliance with the legitimate educational interest requirement.

Does FERPA permit school officials to release information that they personally observed or of which they have personal knowledge?

FERPA applies to the disclosure of education records and of PII from education records that are maintained by the school. Therefore, FERPA does not prohibit a school official from releasing information about a student that was obtained through the school official’s personal knowledge or observation, rather than from the student’s education records. For example, if a teacher overhears a student making threatening remarks to other students, FERPA does not protect that information from disclosure. Therefore, a school official may disclose what he or she overheard to appropriate authorities, including disclosing the information to local law enforcement officials, school officials, and parents.

Are there any limitations to sharing information based on personal knowledge or observations?

The general rule regarding personal knowledge and observations does not apply where a school official learns of information about a student through his or her official role in making a determination about the student and the determination is maintained in an education record. For example, under FERPA a principal or other school official who took official action to suspend a student may not disclose that information, absent consent or an exception under § 99.31 that permits the disclosure.

Disclosure to Parties in Connection with Financial Aid

May a postsecondary institution disclose financial aid records without written consent?

FERPA permits institutions to disclose, without consent, personally identifiable information from students’ education records when the disclosure is in connection with a student's application for, or receipt of, financial aid. Disclosures under this exception to consent may be made if the information is necessary for such purposes as to: (a) determine eligibility for the aid; (b) determine the amount of the aid; (c) determine the conditions for the aid; or (d) enforce the terms and conditions of the aid.

Disclosure to a Parent of a Student at a Postsecondary Institution Use or Possession of Alcohol or Controlled Substance

Can parents be informed about students' violation of alcohol and controlled substance rules?

FERPA permits a college or university to let parents of students under the age of 21 know when the student has violated any law or policy concerning the use or possession of alcohol or a controlled substance.

Disclosure to Organizations Conducting Studies for or on Behalf of the School

May an educational agency or institution disclose personally identifiable information from students’ education records to third parties for the purpose of conducting a study on its behalf?

FERPA contains an exception to its general consent rule under which an educational agency or institution may disclose personally identifiable information from education records without consent to organizations conducting studies for, or on its behalf. Studies must be only for the purpose of: developing, validating, or administering predictive tests; administering student aid programs; or improving instruction. A written agreement with the organization is required specifying the purposes of the study and the use and destruction of the information. 34 CFR § 99.31(a)(6)

Must an educational agency or institution have a written agreement to disclose PII from education records without consent for the purposes of conducting a study or an audit or evaluation of an education program?

Yes. Both the studies exception and the audit or evaluation exception specifically require that the parties execute a written agreement when disclosing PII from education records without consent. The mandatory elements of that agreement vary slightly between the two exceptions. See FPCO’s Guidance for Reasonable Methods and Written Agreements for more information regarding the mandatory elements for written agreements.

Disclosure of Information Designated as Directory Information

Is it permissible to release GPA to honors organizations without consent?

No. FERPA does not generally permit a school to disclose a student’s GPA without the parent’s or eligible student’s consent.

I want to use online tool or application as part of my course. However, I am worried that it is a violation of FERPA. What should I do?

A teacher should check with their school administration to see what has been defined as directory information. As long as using the application would not require disclosing more than directory information and none of the students have opted out of directory information, it would not be a violation of FERPA.

May an educational agency or institution disclose directory information without prior consent?

Education records that have been appropriately designated as "directory information" by the educational agency or institution may be disclosed without prior consent. See 34 CFR §§ 99.31(a) (11) and 99.37. FERPA defines directory information as information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed. 34 CFR § 99.3.

FERPA provides that a school may disclose directory information if it has given public notice of the types of information which it has designated as "directory information," the parent or eligible student’s right to restrict the disclosure of such information, and the period of time within which a parent or eligible student has to notify the school in writing that he or she does not want any or all of those types of information designated as "directory information." 34 CFR § 99.37(a). A school is not required to inform former students or the parents of former students regarding directory information or to honor their request that directory information not be disclosed without consent. 34 CFR § 99.37(b). However, if a parent or eligible student, within the specified time period during the student's last opportunity as a student in attendance, requested that directory information not be disclosed, the school must honor that request until otherwise notified.

A student has opted out of directory information and wants to be anonymous on an online course. Are we required to allow the student to take the course anonymously?

No. Under FERPA, a student may not use his or her right to opt out of directory information disclosures to prevent school officials from identifying the student by name or disclosing the student’s electronic identifier or institutional e-mail address in class.

May schools publish honors and awards received by a student?

Schools may disclose honors and awards received by students if it has properly designated “honors and awards” as a category in its directory information policy and has followed the requirements in FERPA for notifying parents and/or eligible students about the policy.

May a social security number or other student identification number be listed as directory information?

A school may not designate a student’s social security number as directory information. However, directory information may include a student’s user ID or other unique identifier used by the student to access or communicate in electronic systems, but only if the electronic identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the student’s identity, such as a personal identification number (PIN), password, or other factor known or possess only by the student or authorized user. 34 CFR § 99.3 “Directory information”

An eligible student that opted out of directory information has left the school. Now that the student is no longer in attendance, may the school disclose that student’s directory information?

No, a school is required to honor the eligible student’s request to opt out of the disclosure of directory information made while the student was in attendance, unless the student rescinds the opt out request.

Disclosure to Officials for Audit or Evaluation Purposes

May an educational agency or institution disclose personally identifiable information from students’ education records for the purpose of a specified audit, evaluation, or for compliance and enforcement purposes under FERPA?

FERPA permits schools to disclose PII from students’ education records, without consent, to authorized representatives of State and local educational authorities, the Secretary of Education, the Comptroller General of the United States, and the Attorney General of the United States for specified purposes. Disclosures may be made under this exception as necessary in connection with the audit or evaluation of Federal or State supported education programs, or in connection with the enforcement of Federal legal requirements that relate to those program. 34 CFR §§ 99.31(a)(3) and 99.35.

What is an education program?

“Education program” is defined as any program principally engaged in the provision of education, including, but not limited to, early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, and any program that is administered by an educational agency or institution. 34 CFR § 99.3 “education program.”

Disclosure in Connection with a Health or Safety Emergency

When is it permissible to utilize FERPA’s health or safety emergency exception for disclosures?

In some situations, school administrators may determine that it is necessary to disclose PII from a student’s education records to appropriate parties in order to address a health or safety emergency. FERPA’s health or safety emergency provision permits such disclosures when the disclosure is necessary to protect the health or safety of the student or other individuals. See 34 CFR §§ 99.31(a) (10) and 99.36. This exception to FERPA’s general consent requirement is limited to the period of the emergency and generally does not allow for a blanket release of PII from a student’s education records. Rather, these disclosures must be related to an actual, impending, or imminent emergency, such as a natural disaster, a terrorist attack, a campus shooting, or the outbreak of an epidemic disease. See “Addressing Emergencies on Campus” for additional information: http://www2.ed.gov/policy/gen/guid/fpco/pdf/emergency-guidance.pdf

What is a threat assessment team?

A threat assessment team is a group of officials that convene to identify, evaluate, and address threats or potential threats to school security. Threat assessment teams review incidents of threatening behavior by students (current and former), parents, school employees, or other individuals. These teams are more common in university settings but are also being instituted in K-12 schools.

Some schools may need assistance in determining whether a health or safety emergency exists in order to know whether a disclosure may be made under FERPA’s health or safety emergency provision. Accordingly, members of a threat assessment team might include officials who can assist in making such decisions, such as school principals, counselors, school law enforcement unit officials, as well as outside medical and mental health professionals and local law enforcement officers.

The booklet, Threat Assessment in Schools: A Guide to Managing Threatening Situations and to Creating Safe School Climates, jointly issued by the Department and the U.S. Secret Service, includes guidance on forming a threat assessment team on pages 37-38. Information on establishing a threat assessment program, including a link to this booklet and other helpful resources for emergency situations, can be found on the Department’s Web site: http://www2.ed.gov/admins/lead/safety/edpicks.jhtml?src=In

See also “Guide for Developing High-Quality School Emergency Operations Plans”: http://rems.ed.gov/docs/REMS_K-12_Guide_508.pdf.

Does FERPA permit the sharing of education records with outside law enforcement officials, mental health officials, and other experts in the community who serve on a school’s threat assessment team?

Yes. Under FERPA, a school or school district may disclose PII from education records without consent to threat assessment team members who are not employees of the school or school district if they qualify as “school officials” with “legitimate educational interests.”

In establishing a threat assessment team, the school must follow the FERPA provisions in § 99.31(a)(1)(i)(B) concerning outsourcing this function if team members will be privy to PII from students’ education records. While not a requirement of FERPA, one way to ensure that members of the team do not redisclose PII obtained from education records would be to have a written agreement with each of the team members specifying their requirements and responsibilities.

Schools are reminded that members of the threat assessment team may only use PII from education records for the purposes for which the disclosure was made, i.e., to conduct threat assessments, and must be subject to FERPA’s redisclosure requirements in § 99.33(a). For example, a representative from the city police who serves on a school’s threat assessment team generally could not give the police department any PII from a student’s education records to which he or she was privy as a member of the team. However, if the threat assessment team determines that a health or safety emergency exists, then the police officer may disclose, on behalf of the school, PII from a student’s education records to appropriate officials under the health or safety emergency exception under §§ 99.31(a)(10) and 99.36, as discussed below.

Who are considered “appropriate parties” that may receive information under the health or safety emergency exception?

Typically, local or State law enforcement officials, public health officials, trained medical personnel, and parents (including parents of an eligible student) are the types of appropriate parties to whom schools may disclose information under this FERPA exception. An appropriate party under the health or safety emergency exception to FERPA’s general consent requirement is a party whose knowledge of such information is necessary to protect the health or safety of the student or other persons.

What does “articulable and significant threat” mean?

The phrase “articulable and significant threat” means that a school official is able to explain, based on all the information available at the time, what the significant threat is under § 99.36 when he or she makes and records the disclosure. For instance, if a school official believes that a student poses a significant threat, such as a threat of substantial bodily harm to any person, including to the student, then, under FERPA, the school official may disclose PII from the student’s education records without consent to any person whose knowledge of the information will assist in protecting a person from that threat. This is a flexible standard under which school administrators may bring appropriate resources to bear on the situation. If, based on the information available at the time of the determination, there is a rational basis for the educational agency’s or institution’s decisions about the nature of the emergency and the appropriate parties to whom the information should be disclosed, the Department will not substitute it’s judgment for that of the school in evaluating the circumstances and making its determination.

May a school make disclosures under FERPA’s health or safety emergency provision for emergency preparedness exercises?

No. Disclosures made under the health or safety emergency provision must be “in connection with an emergency,” which means it must be related to an actual, impending, or imminent emergency, such as a natural disaster, a terrorist attack, a campus shooting, or the outbreak of an epidemic disease.

Does a school have to record disclosures made under FERPA’s health or safety emergency exception?

Yes. When an educational agency or institution makes a disclosure under the health or safety exception, it must record in the student’s education records the articulable and significant threat that formed the basis for the disclosure, and the parties to whom the information was disclosed. See § 99.32(a)(5).

Are there other situations in which school officials may non-consensually disclose PII from education records of students who have been disciplined for conduct that posed a significant risk to the safety of the school community?

Yes. Under FERPA, a school may share PII from education records with school officials within the school whom the school has determined to have legitimate educational interests in the behavior of a student who has been disciplined 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. See § 99.36(b)(2) and Q&A 9 and § 99.36(b)(1) and (2).

The school may also disclose PII from education records about a student who has been disciplined 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, to school officials at another school who have been determined to have legitimate educational interests in the behavior of the student, if deemed necessary.

For instance, if a school official knows that a student, who has been disciplined for bringing a gun or knife to school or threatened to hurt students and/or teachers, is planning to attend a school-sponsored activity at another high school, FERPA would allow that school official to notify school officials at the other high school who have been determined to have legitimate educational interests in the behavior of the student. See § 99.36(b)(3).

How does a school know when a health or safety emergency exists so that a disclosure may be made under this exception to consent?

An educational agency or institution must make this determination on a case-by-case basis, taking into account the totality of the circumstances pertaining to a threat to the health or safety of a student or others. If the school determines that there is an articulable and significant threat to the health or safety of a student or other individuals and that a third party needs PII from education records to protect the health or safety of the student or other individuals, it may disclose that information to appropriate parties without consent.

Disclosure to School Officials with a Legitimate Educational Interest

Who is a “university official” under FERPA?

(a) The outside contractors or other agents are under the direct control of the Campus or the System Office or both with respect to the use and maintenance of the education records; and
(b) The outside contractor or other agent may not disclose the information to any other party without the student’s consent, and may not use the information for any purpose other than the purpose for which the disclosure was made. In addition, further disclosures may only be made upon the prior written authorization of the respective Campus or System Office.

Under FERPA, may an educational agency or institution disclose education records to any of its employees without consent?

What must educational agencies or institutions do to ensure that only school officials with a legitimate educational interest see protected education records?

Does FERPA permit school officials to release information that they personally observed or of which they have personal knowledge?

Are there any limitations to sharing information based on personal knowledge or observations?

Disclosing Education Records When Students Transfer to New Schools

Does FERPA permit schools to disclose any and all education records on a student to another school where the student seeks or intends to enroll?

Yes. FERPA states a school may disclose education records, without parental consent (§ 99.31(a)(2)), to another school in which a student seeks or intends to enroll, subject to conditions set forth in § 99.34. This exception to FERPA’s general consent requirement also permits a school to disclose education records when a student is being placed in a juvenile justice facility that is considered a school.

What federal law required that States provide assurances to the Secretary of Education that they had procedures in place to facilitate the transfer of student disciplinary information with respect to an LEA’s suspension or expulsion of a student?

Section 4155(b) of the Elementary and Secondary Education Act (ESEA), as amended, 20 U.S.C. § 7165(b), required, in accordance with FERPA, each State receiving funds under the ESEA to provide an assurance to the Secretary that it had “a procedure in place to facilitate the transfer of disciplinary records, with respect to a suspension or expulsion, by local educational agencies to any private or public elementary school or secondary school for any student who is enrolled or seeks, intends, or is instructed to enroll, on a full- or part-time basis, in the school.” LEAs and schools, therefore, should include a notice in their annual notification of rights under FERPA that they forward education records to other schools that have requested the records and in which the student seeks or intends to enroll (§§ 99.7, 99.31(a)(2), and 99.34(a)(1)(ii)). Unless the school or LEA includes this notice in their annual notification of FERPA rights or the parent or eligible student initiates the transfer of records, the school or LEA otherwise would be required to make a reasonable effort to notify the parent or eligible student of the disclosure at the last known address of the parent or eligible student. (See FPCO’s model notification of rights: http://www2.ed.gov/policy/gen/guid/fpco/ferpa/lea-officials.html.)

Disclosure to Comply with a Judicial Order or Subpoena

May schools comply with a subpoena or court order for education records without the consent of the parent or eligible student?

Yes. FERPA permits disclosure of education records without consent in compliance with a lawfully issued subpoena or judicial order. See § 99.31(a)(9)(i) and (ii). However, a school must generally make a reasonable effort to notify the parent or eligible student of the subpoena or judicial order before complying with it in order to allow the parent or eligible student the opportunity to seek protective action, unless certain exceptions apply. Exceptions to the requirement of prior notification apply to: (1) a federal grand jury subpoena or other subpoena issued for a law enforcement purpose if the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; (2) an ex parte order obtained by the United States Attorney General (or designee not lower than Assistant Attorney General) concerning investigations or prosecutions of an act of terrorism or other specified offenses. See § 99.31(a)(9)(ii). For example, if a school received a law enforcement subpoena that requested information on a student suspected of selling drugs, it would not have to make an effort to notify the parent or eligible student if the court or other issuing agency ordered that the existence or the contents of the subpoena or information furnished in response to the subpoena not be disclosed. Additionally, when a parent is a party to a court proceeding involving child abuse and neglect (as defined in section 3 of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 note)) or dependency matters, and the order is issued in the context of that proceeding, additional notice to the parent by the educational agency or institution is not required, the school does not have to notify the parent.

Disclosure to a Victim of an Alleged Perpetrator of a Crime of Violence or a Non-Forcible Sex Offense

May a postsecondary institution disclose information about a disciplinary proceeding to the victim of a crime of violence or a non-forcible sex offense?

Yes, a postsecondary institution may disclose only the final results of the disciplinary proceeding to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense. In disclosures to the victim, the institution may disclose the final results of the disciplinary proceeding regardless of whether the institution concluded a violation was committed.

Disclosure in Connection with a Disciplinary Proceeding at a Postsecondary

What constitutes the final results of a disciplinary proceeding?

“Final results” means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution.

What constitutes a crime of violence or a non-forcible sex offense?

The offenses that constitute a crime of violence or a non-forcible sex offense include arson, assault offenses, burglary, criminal homicide (manslaughter by negligence), criminal homicide (murder and nonnegligent manslaughter), destruction/damage/vandalism of property, kidnapping/abduction, robbery, forcible sex offenses, statutory rape, and incest.

May postsecondary institutions disclose results of disciplinary proceedings?

Postsecondary institutions may disclose the final results of disciplinary proceedings if the institution has found that the student has violated the institution’s rules or policies in regards to a crime of violence or a non-forcible sex offense. Furthermore, the institution may not disclose the name of any other student, including a victim or witness, without the prior written consent of that student.

Disclosure to Accrediting Organizations

Is an educational institution or agency permitted to disclose student records without consent to accrediting organizations?

Yes, an educational institution or agency is permitted to disclose student records to the extent accrediting organizations need the records in order to carry out their accrediting function.

Sharing information with School Law Enforcement Units and School Resource Officers

Can a school’s law enforcement unit officials be considered schools officials with legitimate educational interests?

Yes, if certain conditions apply. A law enforcement unit official, just like any other employee of the school, may generally be considered a school official with a legitimate educational interest if the employee needs to see education records in order to perform his or her professional duties. In several questions below, we discuss how the school official provision applies in situations in which the law enforcement unit is not comprised of school employees.

Can off-duty police officers or School Resource Officers (SROs) be considered school officials under FERPA and, therefore, have access to students’ education records?

Yes, if certain conditions are met. FERPA (§ 99.31(a)(1)(i)(B)) permits schools to outsource institutional services or functions that involve the disclosure of education records to contractors, consultants, volunteers, or other third parties provided that the outside party:

Performs an institutional service or function for which the agency or institution would otherwise use employees;
Is under the direct control of the agency or institution with respect to the use and maintenance of education records;
Is subject to the requirements in § 99.33(a) that the personally identifiable information (PII) from education records may be used only for the purposes for which the disclosure was made, e.g., to promote school safety and the physical security of students, and governing the redisclosure of PII from education records; and
Meets the criteria specified in the school or local educational agency’s (LEA’s) annual notification of FERPA rights for being a school official with a legitimate educational interest in the education records.

As indicated in the listing above, local police officers acting as school officials may only use PII from education records for the purposes for which the disclosure was made, e.g., to promote school safety and the physical security of the students. See §§ 99.31(a)(1)(i)(B)(3) and 99.33(a)(2). In addition, these officers are subject to FERPA’s redisclosure requirements in § 99.33(a). This means that a local police officer who is acting as a “school official” under FERPA may not redisclose PII from education records to others, including other employees of his or her police department who are not acting as school officials without consent, unless the disclosure fits within one of the exceptions to consent in FERPA.

Other exceptions may also permit police officers or other outside parties access to PII from students’ education records without consent, such as the subpoena or court order exception, the health or safety emergency exception, or the directory information exception. If the directory information exception is used, the school should verify that the parent or eligible student in question has not opted out of the disclosure of directory information.

What is a threat assessment team?

What is a “law enforcement unit”?

Under FERPA, “law enforcement unit” means any individual, office, department, division, or other component of a school, such as a unit of commissioned police officers or noncommissioned security guards, that is officially authorized or designated by that school or school district to (1) enforce any local, State, or Federal law, or refer to appropriate authorities a matter for enforcement of any local, State, or Federal law against any individual or organization other than the agency or institution itself; or (2) maintain the physical security and safety of the agency or institution. See 34 CFR § 99.8(a)(1).

Schools vary in who they authorize or designate to be their law enforcement unit, usually depending upon their size and resources. Some larger school districts have their own fully equipped police units, while others have smaller security offices. Other schools designate a vice principal or other school official to act as the law enforcement unit officer. And other schools may utilize local police officers and SROs as their law enforcement officials.

What is a “law enforcement unit record”?

“Law enforcement unit records” are those records that are: (1) created by a law enforcement unit; (2) created for a law enforcement purpose; and (3) maintained by the law enforcement unit. See 34 CFR § 99.8(b)(1).

Law enforcement unit records are not protected by FERPA because they are specifically excluded from the definition of “education records” and thus, from the privacy protections afforded to parents and eligible students by FERPA. Therefore, investigative reports and other records created and maintained by these law enforcement units that meet this definition are not considered “education records” subject to FERPA.

Accordingly, under FERPA, schools may disclose information from law enforcement unit records to anyone, including outside law enforcement authorities, without consent from parents or eligible students. (Schools should be aware of any other applicable policies or laws, including federal civil rights laws, regarding any requirements for disclosure or restrictions of disclosure of law enforcement unit records.) Law enforcement unit records do not include: (1) records created by a law enforcement unit for a law enforcement purpose that are maintained by a component of the educational agency or institution other than the law enforcement unit (such as a principal or other school official); or (2) records created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution. See 34 CFR § 99.8(b)(2).

When can law enforcement unit officials serve as “school officials”?

In order for law enforcement unit officials to be considered school officials, they must meet the criteria for who constitutes a school official that are set forth in the school’s or LEA’s annual notification to parents and eligible students of their rights under FERPA. See § 99.7(a)(3)(iii). This notification must be distributed by a school or LEA every year through a forum that is likely to be viewed by parents and eligible students, such as a student handbook, school website, a direct letter to parents, or a combination of methods, and must inform parents and eligible students of their rights under FERPA. (Please see http://www2.ed.gov/policy/gen/guid/fpco/ferpa/lea-officials.html for a model notification.) Schools must also determine that the school official’s interest in accessing the education records meets the criteria for legitimate educational interests, as set forth in the school or LEA’s annual notification of FERPA rights. Under these notifications, school official typically would have a “legitimate educational interest” if the official needs to review an education record in order to fulfill his or her professional responsibility.

Having law enforcement unit officials who are “school officials” with a “legitimate educational interest” will permit the school to non-consensually disclose PII from students’ education records to its law enforcement unit officials so that they may perform their professional duties and assist with school safety matters. For example, if a student is expelled from school and barred from campus, the principal could disclose the student’s disciplinary report to the law enforcement unit officials so that they would know that the student is not supposed to be on campus. The information from education records that is provided to the school’s law enforcement unit officials remains subject to FERPA and may be further disclosed by that unit (e.g., to the local police department) only with consent or in accordance with the exceptions to the consent requirement at § 99.31. Because the school’s law enforcement unit may not redisclose PII from students’ education records that it receives, except in compliance with FERPA, it is advisable for law enforcement units to maintain law enforcement unit records separately from education records.

Does a school have to use only employees to staff its law enforcement unit?

The manner in which a school establishes its law enforcement unit is outside the scope of FERPA. Accordingly, FERPA does not require a school to use only employees to staff its law enforcement unit. Local police officers and other law enforcement personnel employed by local or State authorities also may serve as the “law enforcement unit” of an educational agency or institution.

Are SROs or other outside local law enforcement officials who serve as a school’s law enforcement unit automatically considered school officials?

Not automatically. These officials may be considered “school officials” with “legitimate educational interests” and have access to students’ education records, but only if they:

Perform an institutional service or function for which the agency or institution would otherwise use employees;
Are under the direct control of the agency or institution with respect to the use and maintenance of education records;
Are subject to the requirements in § 99.33(a) that the PII from education records may be used only for the purposes for which the disclosure was made, e.g., to promote school safety and the physical security of students, and governing the redisclosure of PII from education records; and
Meet the criteria specified in the school or LEA’s annual notification of FERPA rights for being a school official with a legitimate educational interest in the education records.

Can a school provide local or other law enforcement officials with “directory information” on students?

Yes. If the school or school district has a directory information policy under FERPA that permits this disclosure, then the directory information of those students whose parents (or the eligible students) have not opted out of such a disclosure may be disclosed.

The disclosure of appropriately-designated directory information under the conditions set forth in § 99.37 is one of the exceptions to FERPA’s general consent requirement (§§ 99.31(a) (11) and 99.37). FERPA defines “directory information” as information in a student’s education record that would not generally be considered harmful or an invasion of privacy if disclosed. See § 99.3 "Directory information." Directory information may include the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors and awards received; and the most recent educational agency or institution attended.

A school may disclose directory information if it has given public notice of the types of information which it has designated as "directory information," the parent or eligible student’s right to restrict the disclosure of such information, and the period of time within which a parent or eligible student has to notify the school in writing that he or she does not want any or all of those types of information designated as "directory information. See § 99.37(a).

Does FERPA distinguish between School Resource Officers (SROs) and other local police officers who work in a school?

No. As noted previously, an SRO typically serves as an on-site law enforcement officer and as a liaison with the local police or sheriff’s department. An SRO also works with teachers and school administrators to promote school safety and to help ensure physical security. An SRO may be designated by the school as a “law enforcement unit” official under FERPA (§ 99.8). However, in order for a school to disclose PII from education records to an SRO, the SRO must be considered a “school official” under FERPA in accordance with § 99.31(a)(1)(i)(B) concerning outsourcing. A school may only non-consensually disclose PII from students’ education records to its law enforcement unit if those individuals in the law enforcement unit meet the requirements set forth in FERPA’s school official exception or if some other FERPA exception to the general consent rule applies.

A school must have direct control over an SRO’s maintenance and use of education records in providing SRO services in order for the SRO to be considered a school official. Further, under the school official exception (as well as any FERPA exception to consent), SROs may only use the PII from education records for the purposes for which the disclosure was made, e.g., to promote school safety and the physical security of the students. See §§ 99.31(a)(1)(i)(B)(3) and 99.33(a)(2). In addition, SROs are subject to the redisclosure requirements of § 99.33(a). This means that an SRO who is serving as a “school official” under FERPA may not disclose PII from education records to others, including other employees of his or her local police department who are not acting as school officials, without consent unless the redisclosure fits within one of the exceptions to FERPA’s consent requirement.

Disclosing Information with the Juvenile Justice System

Does FERPA permit the disclosure of PII from education records to officials of a State’s juvenile justice system?

FERPA permits schools to non-consensually disclose PII from education records to State and local officials or other authorities if the disclosure is allowed by a State law adopted after November 19, 1974, and if the disclosure concerns the juvenile justice system and its ability to serve, prior to adjudication, the student whose records are disclosed. See §§ 99.31(a)(5) and 99.38. The officials and authorities to whom such information is disclosed must certify in writing to the school that the information will not be provided to any other party, except as provided for under State law without written consent.