“...post-secondary education
records are subject to federal
privacy law that protects students’
education records from disclosure,
subject to certain exceptions.”
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Jane vents her frustrations while thinking
through the steps she took to have the
subpoena issued and served. “I don’t
understand.” she thinks to herself. “The
subpoena was lawfully issued, and the
university falls within the jurisdiction of the
court issuing the subpoena. I provided a copy of
the subpoena to the plaintiff’s attorney, so the
plaintiff has been provided notice through his
legal representation. No one else from whom
I have ever subpoenaed records has had to
provide a separate notification to the party for
whom records were sought. What’s wrong? How
do I ensure this doesn’t happen again?”
Jane, like many paralegals and attorneys,
doesn’t realize that post-secondary education
records are subject to federal privacy law that
protects students’ education records from
disclosure, subject to certain exceptions. A
good understanding of this federal law and
its implications for obtaining student records
will ensure that you are able to properly serve
a subpoena and timely obtain student records
necessary for your case.
What is FERPA and to Whom Does it Apply?
The Family Educational Rights and Privacy
Act of 1974 (also known as the Buckley
Amendment) is the federal law that governs
the privacy rights of students relating to
their education records. FERPA applies to
all educational agencies and institutions
that receive funding under any program
administered by the U.S. Department of
Education. Religious and private schools
at the elementary and secondary levels
generally do not receive such funding and
therefore are not subject to FERPA. Private
postsecondary schools often do receive such
funding and generally are subject to FERPA.
The Family Compliance Policy Office of
the U.S. Department of Education oversees
implementation of FERPA. The FCPO provides
guidance, usually in the form of “Dear
Colleague” letters, and resource materials, such
as model notifications, to educational agencies
to help them comply with FERPA requirements.
The FCPO also provides a venue through
which a student may complain if he believes an
institution has violated his FERPA rights.
States also have laws governing the privacy
rights of students’ education records. While
these typically mirror the federal statute, you
may want to check your state’s statutes for any
differences.
At the elementary and secondary level,
privacy rights are vested in the parents of minor
students; once a student reaches 18 years of
age, privacy rights are vested in the student.
When enrolled in a postsecondary institution,
however, privacy rights are vested in the
student regardless of the student’s age.
What is an “education record?”
FERPA defines education records 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.
Most records created or maintained by an institution relating to a
student fall within the definition of education record. These include official
transcripts, admissions applications, student accounting and financial
aid records, housing records, and employment records relating to federal
or institutional work study positions. Student employment records are
education records subject to FERPA when the student is eligible for the
particular position in which he is employed, only by virtue of his role as a
student (e.g. graduate assistant or work-study program). If an individual
is employed in a regular position for which enrollment as a student is not
an eligibility requirement, then the employment records are not education
records.
Six types of records are not included in the definition of education record:
1) Records that are in the sole possession of their creator and that have
not been shared with or cannot be accessed by anyone else,
such as an instructor’s personal written observations about
a student’s behavior in class.
2) Records created and maintained by a law enforcement unit
of an institution.
3) Records relating to an employee of the university that relate to that
individual, only in his capacity as an employee and that are not used
for any other purpose.
4) For students who are 18 years of age or older, records that are
identified as “treatment records” are not included in the definition of
education records. These include records that are: (a) created and kept
by a physician, psychiatrist, or other similar professional acting in his
professional capacity; (b) created and used solely in connection with
treatment of the student; and (c) disclosed only to individuals
providing treatment.
5) Records created or received after the individual is no longer attending
the university and that are not directly related to the individual’s
enrollment as a student, such as alumni records or donor records.
6) Peer-graded papers are not education records until after they are
collected and the grades are recorded by the instructor.
These records may become education records if they are not strictly
utilized or maintained in the manner described. For example, if a university
police department’s criminal report is shared with the university’s student
disciplinary office because it involves alcohol use by a minor in a residence
hall, which is also a violation of the student code of conduct, and that
criminal report is used to apply sanctions under the student code of conduct,
that copy of the criminal report becomes an education record.
Does HIPAA or FERPA Apply to Student Health Center Records?
Records that are subject to FERPA are specifically excluded from the
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