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action. FERPA and its implementing regulations do not specify what constitutes a
“reasonable effort,” including the time period for objecting. Many institutions use
a two week period to allow enough time for the letter to be delivered and for the
student to take action if he objects to the disclosure of his records.
FERPA requires that the notice must advise the student that the institution
has received a subpoena seeking the student’s education records, and that the
school intends to comply by a certain date. The fact that the attorney issuing the
subpoena has already provided a copy to the student’s attorney (when the student
is represented) does not negate the institution’s responsibility under federal law
to provide this notice. The school must provide this notice and allow a reasonable
period of time for the student to object to the disclosure.
The student’s objection must be a formal action, such as a motion to quash,
filed with the court in which the litigation is pending. A phone call or email to the
institution saying “I do not want you to release my records” is not sufficient to
prevent the school from disclosing the records. When a motion to quash is filed and
a subsequent order is issued, the student’s attorney should ensure the university is
provided a copy of both pleadings immediately when filed and issued to prevent an
inadvertent disclosure if the motion to quash is pending or has been granted when
the date to comply with the subpoena arrives.
There are three exceptions to the notification requirement: (1) if the subpoena
is a federal grand jury subpoena and the court has ordered that the subpoena and
the response not be disclosed; (2) if the subpoena is issued for a law enforcement
purpose (such as an active investigation) and the court has ordered that the
subpoena and the response not be disclosed; or (3) if there is an ex parte court order
relating to international or domestic terrorism as defined in 18 U.S.C. 2331 and
18 U.S.C. 2332b.
When an institution receives a subpoena, its legal office will review the subpoena
to ensure that it is lawfully issued, that the university is within the issuing court’s
jurisdiction, and that disclosure is not prohibited by the court. The institution will
then check its records to verify whether the individual was or is a student, and after
confirming that the individual was or is a student, it will send the notification letter
to the last address it has for the student. In instances where the student is a party
to the lawsuit and the identity of the student’s attorney is known, most universities
will send the notification letter to the student’s attorney, or to both the student’s
attorney and the student at his last known address.
The school will also begin to identify which offices may maintain responsive
records and begin gathering those records during the time period for delivery of
the notice to the student and the student’s objection. Depending on the records
specified in the subpoena, this may involve gathering records from a number of
offices, as higher education institutions do not have a “central office” that houses
all records relating to a particular student. The registrar’s office generally maintains
only those records which are identified as permanent records, such as official
transcripts and expulsion records. Other records such as housing records, student
account records, financial aid records, disciplinary records, department advising
records, and class attendance records are maintained by the office or individual
responsible for the particular record. Obviously, the greater the number of records
sought, the more time and effort will be required to gather, review, and scan or copy
the records.
Tips to Ensure You Receive Necessary Records Timely
There are key things you can do to ensure you timely receive the records you need:
Check the university’s website. You can often find information about how to serve
a subpoena on the institution on its website. Many universities have a legal services
office; public universities may be represented by that state’s attorney general. If
information on a legal office cannot be found on the website, the registrar’s office
is typically the official education records keeper and should be contacted for this
information.
Call the legal office. A phone call to the institution’s legal office will go a long
way in helping tailor your subpoena and ensuring that it is properly served; it may
also help the school respond efficiently and effectively. The person responsible for
responding to subpoenas generally will be willing to provide information relating to
FERPA if you have specific questions. This is especially beneficial if you work for a
law enforcement agency or some other agency conducting an ongoing investigation,
and you do not want the existence of the subpoena disclosed; questions and issues
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