“Education record” is a term defined under the Family Educational Rights and Privacy Act (FERPA) and incorporated into the IDEA by reference. FERPA defines education records as records that are directly related to a student and that are maintained by an educational agency. [20 U.S.C. § 1232g(d); 34 C.F.R. § 99.3] FERPA “regards as an education record most information that teachers, school administrators, and education officials maintain about students in a tangible format, whether in electronic, photographic, or paper files.” [National Forum on Education Statistics. Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies, NCES 2004-330. Washington, DC: 2004] The regulations that implement the IDEA require public schools to allow parents to inspect and review any education records relating to their children that are collected, maintained, or used by the school under Part B of the IDEA. [34 C.F.R. § 300.613(a)] Therefore, a “special education record” (relating to the identification, evaluation, educational placement, or the provision of a free appropriate public education (FAPE) to a child) is a smaller subset of the term “education record.”
Records (Educational Records)
How long does a school have to respond to a records request when a student moves or transfers to a different school?
The regulations that implement the IDEA state that the school receiving a transfer student “must take reasonable steps to promptly obtain the child’s records,” and the previous school at which the child was enrolled “must take reasonable steps to promptly respond to the request [for records] from the new [school].” [34 C.F.R. § 300.323(g)(1)and(2)] Arizona has more specific requirements. “Within five school days after enrolling a transfer pupil from a private school or another school district, a school shall request directly from the pupil’s previous school a certified copy of the pupil’s record. The requesting school shall exercise due diligence in obtaining the copy of the record requested. Notwithstanding any financial debt owed by the pupil, any school requested to forward a copy of a transferring pupil’s record to the new school shall comply and forward the record within ten school days after receipt of the request unless the record has been flagged pursuant to section 15-829.” [A.R.S. § 15-828(F)] (A.R.S. §15-829 deals with missing children and reporting to law enforcement any request for a missing student’s records)]
What agency is responsible for investigating allegations of that a school has breached confidentiality with respect to a child’s education records?
The Family Educational Rights and Privacy Act (FERPA) is a comprehensive federal law governing education records and is found at 20 U.S.C. § 1232g; 34 C.F.R. Part 99. As a general matter, FERPA: (1) requires schools to provide parents and eligible students an opportunity to inspect and review the student’s education records; and (2) prohibits schools from disclosing personally identifiable information from a student’s education records to a third party unless the parent or eligible student has provided written consent. FERPA defines “education records” as records that are directly related to a student and that are maintained by an educational agency. The regulations that implement the IDEA further delineate and narrow the FERPA definition to mean education records relating to eligible students that are collected, maintained, or used by the school under Part B of the IDEA. [34 C.F.R. § 300.613(a)] Therefore, a “special education record” (relating to the identification, evaluation, educational placement, or the provision of a FAPE to a child) under the IDEA is a smaller subset of the term “education record” as defined under FERPA.
Complaints alleging that a public education agency has violated the confidentiality requirements with respect to records that are collected, maintained, or used under Part B of the IDEA may be addressed to Arizona Department of Education/Dispute Resolution. Allegations that a public education agency has violated a child’s right to confidentiality with respect to records that are not collected, maintained, or used under Part B of the IDEA should be addressed to the U.S. Department of Education/Family Policy Compliance Office (FPCO), the agency that administers FERPA, at 400 Maryland Avenue, SW; Washington, D.C. 20202-5920. On the state level there is a parallel mechanism available. Arizona Revised Statutes state that “[a]ny person who suspects that a school district or charter school has knowingly violated [FERPA] may notify the principal of the charter school or the superintendent of the school district. If the matter is not satisfactorily resolved by the principal of the charter school or the superintendent of the school district within 60 days after the notice, the person may file a complaint with the [Arizona] superintendent of public instruction.” [A.R.S. § 15-142(C)] Such a complaint should be addressed to the Arizona Department of Education; Director of Legal Services, 1535 W. Jefferson, Bin 62, Phoenix, AZ 85007.
Does a student under the age of 18 have rights under FERPA to inspect and review his/her educational records?
It depends. “The rights under FERPA that pertain to a student’s education records are afforded to the parents of a student. . .” [Letter to Connor, 110 LRP 45084, Family Policy Compliance Office (FPCO), January 27, 2010] (Emphasis added) Under FERPA, the right of a parent to inspect and review the education record of his/her child transfers to the child when he/she reaches the age of majority (18 years of age) or begins attendance at a postsecondary school. [34 C.F.R. §§ 99.4 and 99.5; Letter to Connor, 110 LRP 45084 (FPCO 2010)]
No. “FERPA [Family Educational Rights and Privacy Act] applies to the disclosure of tangible records and of information derived from tangible records. FERPA does not protect the confidentiality of information in general, and, therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exist which contain that information. As a general rule, information that is obtained through personal knowledge, observation, or hearsay, and is not information obtained from an education record, is not protected from disclosure under FERPA.” [Letter: New York City Department of Education, 105 LRP 25855, Family Policy Compliance Office (FPCO), January 27, 2005].”