• The right to demand educational records be disclosed only with student consent;
• The right to amend educational records;
• The right to file complaints against the school for disclosing educational records in violation of FERPA.

Students have a right to know about the purpose, content, and location of information kept as a part of their educational records. They also have a right to expect that information in their educational records will be kept confidential unless they give permission to the school to disclose such information. Therefore, it is important to understand how educational records are defined under FERPA. Educational records are defined by FERPA as:

Educational records are directly related to the student and are either maintained by the school or by a party or organization acting on behalf of the school. Such records may include:

Any record that contains personally identifiable information that is directly related to the student is an educational record under FERPA. This information can also include records kept by the school in the form of student files, student system databases kept in storage devices such as servers, or recordings or broadcasts which may include student projects.

Records Not Considered As Educational Records

The following items are not considered educational records under FERPA:

Faculty notes, data compilation, and administrative records kept exclusively by the maker of the records that are not accessible or revealed to anyone else are not considered educational records and, therefore, fall outside of the FERPA disclosure guidelines. However, these records may be protected under other state or federal laws such as the doctor/patient privilege. As an attorney, I recommend that you check to make sure that you fully comply with these disclosure guidelines before disseminating any of this information .

Two Types of Educational Records

There are two types of educational records as defined under FERPA. Each type of educational record is afforded different disclosure protections. Therefore, it is important for faculty and staff to know the type of educational record that is being considered for disclosure.

Directory Information

Some information in a student's educational record is defined as directory information under FERPA. Under a strict reading of FERPA, the school may disclose this type of information without the written consent of the student. However, the student can exercise the option to restrict the release of directory information by submitting a formal request to the school to limit disclosure. Directory information may include:

Though it is not specifically required by FERPA, institutions should always disclose to the student that such information is considered by the school to be directory information and, as such, may be disclosed to a third party upon request. institutions should err on the side of caution and request, in writing, that the student allow the school to disclose directory information to third parties.

Non-directory Information

Non-directory information is any educational record not considered directory information. Non-directory information must not be released to anyone, including parents of the student, without the prior written consent of the student. Further, faculty and staff can access non-directory information only if they have a legitimate academic need to do so. Non-directory information may include:

Transcripts are non-directory information and, therefore, are protected educational records under FERPA. Students have a right to privacy regarding transcripts held by the school where third parties seek transcript copies. institutions should require that students first submit a written request to have transcripts sent to any third party as the privilege of privacy of this information is held by the student under FERPA. As an attorney, I would advise that schools should never fax transcripts because this process cannot guarantee a completely secure transmission of the student's grades to third parties.

Prior Written Consent

In general, a student's prior written consent is always required before institutions can legitimately disclose non-directory information. institutions may tailor a consent form to meet their unique academic needs. However, prior written consent must include the following elements:

Prior written consent is not required when disclosure is made directly to the student or to other school officials within the same institution where there is a legitimate educational interest. A legitimate educational interest may include enrollment or transfer matters, financial aid issues, or information requested by regional accrediting organizations.

Institutions do not need prior written consent to disclose non-directory information where the health and safety of the student is at issue, when complying with a judicial order or subpoena, or where, as a result of a crime of violence, a disciplinary hearing was conducted by the school, a final decision was recorded, and the alleged victim seeks disclosure. In order for institutions to be able to disseminate non-directory information in these instances FERPA requires that institutions annually publish the policies and procedures that the institutions will follow in order to meet FERPA guidelines.

• The dependent student understands and allows parental access to these educational records;
• The dependent student and his/her parents have been given a copy of the institution's policies and procedures for the disclosure of students' records.

Conclusion

The Family Education and Privacy Act was enacted by Congress to protect the privacy of student educational records. This privacy right is a right vested in the student. Generally:

Finally, the school should always seek a written consent from the student before disseminating educational records to third parties.

Note: An new interpretation of FERPA as it applies to mental health and campus safety was issued by the US Department of Education in December, 2008.  The following articles address this topic:

References:

Federal Register, (Thursday, July 26, 2001). 34 CFR Part 99, Part V, Family Education   Rights and Privacy, Final Rule. Retrieved October 17, 2004 from http://asja.tamu.edu/ferpa.htm .

Office of Family Policy Compliance, Family Education Rights and Privacy Act   (FERPA). Retrieved October 17, 2004 from http://www.ed.gov/print/policy/gen/guid/fpco/ferpa/index.html .

Ramirez, Clifford A. (2004). FERPA: What You Can and Can't Disclose, An LRP Publications Audio Conference.

University of Connecticut, Office of the Registrar, Guidelines for Faculty Relating to Educational Records. Retrieved October 16, 2004 from   http://www.registrar.uconn.edu/ferpguid.html .

University of Illinois at Urbana-Champaign, Office of Admissions and Records  (OAR), FERPA Tutorial. Retrieved October 15, 2004 from  http://www.oar.uiuc.edu/staff/systems/ferpa_trng/Ferpa_pg2.html .

Resources:

• Education Department Reworks Privacy Regulations via 12/09/08 Wall Street Journal
• FERPA updates US Department of Education 12/09/08
• FERPA revisions podcast PowerPoint February 2009
• Resources linked from the NACADA Clearinghouse