Education Law Publications

DUFF , WHITE & TURNER, L.L.C.

Attorneys And Counselors At Law

SCHOOL LAW
"ISSUE OF THE MONTH"
December 2007

Balancing Student Privacy and School Safety:
U.S. Department of Education Issues FERPA Guidance Document

Following the shootings at Virginia Tech, a task force of federal agencies, including the U.S. Department of Education (USDE), set out to address concerns related to emergency preparedness and school safety. While conducting information gathering sessions with educators, first responders, parents, and others, the task force learned that there was considerable confusion related to the release of information contained in student records under the provisions of the federal privacy law known as the Family Educational Rights and Privacy Act (FERPA). Although the task force stopped short of recommending changes to FERPA, the USDE released a guidance document for elementary and secondary schools designed to assist schools with the difficult balance between school safety and the protection of student privacy under FERPA. Issued on October 30, 2007, "Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Elementary and Secondary Schools" clarifies several important areas.

First, the guidance document notes that FERPA permits school officials to disclose personally identifiable student educational records without parental consent "to protect the health or safety of students or other individuals." Under this provision, school officials may release information in student records to law enforcement officials, public health officials, and trained medical personnel in the event of an emergency situation, such as a school shooting, without obtaining parental consent. This exception to the parental consent requirement, however, is limited to the actual period of emergency and does not continue once the emergency-aspect of the situation is considered to be under control.

Next, the guidance document points out that records generated by what FERPA refers to as a school's "law enforcement unit" are not subject to FERPA if the records are created and maintained for "law enforcement purposes." A "law enforcement unit" may consist of a designated employee or employees who are assigned the task of monitoring the safety and security of schools. Investigative reports and other records created and maintained by these units, if for "law enforcement purposes," are not considered educational records subject to FERPA. As a result, videotapes from security cameras operated and maintained by a school's law enforcement unit could be shared with outside law enforcement officials, as well as with parents of students captured on the videotape, without either obtaining parental consent of all other students captured on the video or rendering the images of other students on the video unidentifiable, as would be required if the records were subject to FERPA. By way of caution, however, it should be noted that if a school security tape is not subject to the protections of FERPA, the tape then may become subject to public disclosure under the provisions of the S.C. Freedom of Information Act (FOIA).

Districts should carefully consider whether they wish to designate a law enforcement unit to be responsible for school security tapes, making it easier to provide the tapes to law enforcement and parents of students captured on the tape, or to continue to consider the tapes to be student educational records and require parental permission or an identity-blurring process before releasing the tapes. If a law enforcement unit is created, the annual parental notification of rights, required by FERPA, should inform parents which school officials are considered to be the school's law enforcement unit. The parental notice also should designate the officials who make up the law enforcement unit as having a legitimate educational interest in accessing student records so that they may access other relevant information about a student when necessary.

The guidance document also reminds school officials that information about a student which a school official hears, sees, or otherwise learns about, but which was not obtained through the student's educational records, is not subject to FERPA. A school official who overhears a student making threatening remarks, for example, may disclose that information to appropriate authorities. For more information on how schools should address situations where students make threatening remarks, or where students may pose a threat of harm, please see the May 2007, edition of the School Law Issue of the Month, "Preventing School Shootings: Identifying and Addressing Warning Signs of Violent Tendencies," which can be accessed at www.ddtwb.com.

Lastly, the guidance document provides helpful information concerning the transfer of educational records to other K-12 schools or postsecondary institutions where a student is seeking to enroll. In such situations, student records, including those regarding discipline and special education, may be transferred without parental consent, provided the annual parental notification of FERPA rights includes an explanation of the records transfer process. Otherwise, schools are required to make a reasonable attempt to notify the parent(s) about the disclosure prior to the disclosure, provide the parent(s) a copy of the information disclosed, and offer the parent(s) an opportunity for a hearing regarding the disclosure. Again, to avoid these additional requirements, a school district need only include an explanation of the records transfer process in its annual parental FERPA notification.