When Can Education Records Be Released Without Consent?

FERPA is a federal law that protects the privacy of student education records. The law applies to all schools that receive funds from the U.S. Department of Education.

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Background

Families have the right to privacy of their educational records under the Family Educational Rights and Privacy Act (FERPA). know when these rights may be waived.

FERPA

The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student education records. The law applies to all schools that receive funds from the U.S. Department of Education.

FERPA gives parents certain rights with respect to their children’s education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level.

Generally, schools must have written permission from the parent or eligible student in order to release any information from a student’s education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR section 99.31):

School officials with legitimate educational interest; Other schools to which a student is transferring; Specified officials for audit or evaluation purposes; Appropriate parties in connection with financial aid to a student; Organizations conducting certain studies for or on behalf of the school; Accrediting organizations; To comply with a judicial order or lawfully issued subpoena; Appropriate officials in cases of health and safety emergencies; and State and local authorities, within a juvenile justice system, pursuant to specific State law.

Types of education records

There are generally four types of education records:
1. directory information,
2. student financial records,
3. confidential letters and statements, and
4. education records that are not classified as directory information or student financial records.

When can records be released without consent?

Generally, an educational institution may release education records without consent if the disclosure is permitted or required by law or if the student has given consent for the release. However, there are some exceptions to this rule. For example, if the disclosure is made to a school official with a legitimate educational interest, the records may be released without consent.

To school officials with a legitimate educational interest

School officials are defined as a person employed by the school as an administrator, supervisor, instructor, or support staff member (including health or medical staff and law enforcement unit personnel); a person or company with whom the school has contracted to perform a special task (such as an attorney, auditor, medical consultant, or therapist); or a parent or student serving on an official committee, such as a disciplinary or grievance committee. A school official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility.

The term “school officials” also encompasses contractors, consultants, volunteers, and other outside persons who perform institutional services or functions for which they receive compensation from the school. These include but are not limited to:
-An individual providing services under a contract with the school to maintain student records;
-A person employed by an organization to which the university has outsourced institutional services or functions; and
-A parent or student serving on an officialcommittee.

In connection with a student’s application for, or receipt of, financial aid

The Department of Education’s Family Policy Compliance Office (FPCO) enforces the Family Educational Rights and Privacy Act (FERPA).

Under FERPA, schools must generally have written permission from the parent or eligible student in order to release any information from a student’s education records. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR 99.31):

School officials with legitimate educational interest;
Other schools to which a student is transferring;
Specified officials for audit or evaluation purposes;
Appropriate parties in connection with an emergency, if knowledge of information in the records is necessary to protect the health or safety of students or other individuals; and/or
State and local authorities, within a juvenile justice system, pursuant to specific State law. For more information on this exception please see OCR’s Guidance on Programs and Activities Serving Children. In addition, two new exceptions were adopted in the final regulations that implement the amendments to FERPA made by P.L. 110-315 -Shared use agreements and foreign exchange programs: Shared Use Arrangements: For detailed information about this provision please see OCR’s Guidance clarifying new provisions regarding disclosures under shared use arrangements. Foreign Exchange Students: Disclosures may be made without consent an exchange visitor who is enrolled on a full-time basis at postsecondary institution pursuant to an international exchange program sponsored by the U.S. Department of State provided certain conditions are met.” These exceptions are discussed in more detail below.

Pursuant to a judicial order or lawfully issued subpoena

FERPA permits the disclosure of PII from education records without consent of the student if the disclosure is made pursuant to a judicial order or lawfully issued subpoena and FERPA’s other conditions are met. A school official may disclose, without consent, “directory information” unless the student has advised the school in writing that such information should not be released without consent.

To state and local educational authorities

Under the Family Educational Rights and Privacy Act (FERPA), educational agencies and institutions must provide written notification to students of their rights under FERPA. The Act requires that educational agencies and institutions give students the opportunity to have their Education Records released to third parties without their consent.

There are certain circumstances under which FERPA permits the release of student information without consent. For example, disclosure may be made without consent when it is in compliance with a judicial order or subpoena, when it is determined that the information represents a health or safety emergency, or when the disclosure is made to state and local educational authorities.

Other disclosures not mentioned above may be made without consent if the disclosure meets certain conditions set forth in the FERPA regulations. Please see 34 CFR part 99 for a complete description of all the disclosures that may be made without consent.

To officials of another school, upon request, in which a student seeks or intends to enroll

FERPA generally prohibits the non-consensual release of education records. However, there are a number of exceptions where records can be released without consent. One exception is disclosure to officials of another school, upon request, in which a student seeks or intends to enroll.

In order for this exception to apply, the following conditions must be met:

-The disclosing institution must have a legitimate educational interest in the records;
-The officials requesting the records must state in writing that the information will be used solely for the purpose of determining the student’s eligibility for admission or transfer; and
-The officials requesting the records must give assurances that the information will be kept confidential.

When is consent required?

Under the Family Educational Rights and Privacy Act (FERPA), schools must generally get consent from parents or eligible students in order to release education records.

For most other purposes

Other than the six exceptions noted above, in order for an educational institution to release any information from a student’s education records, the institution must have the student’s prior written consent.

If consent is not received, the release of information is still possible if the institution determines that the disclosure meets certain conditions set forth in FERPA known as a “need-to-know” determination. In order for a “need-to-know” determination to occur, the institution must be able to demonstrate that:
1. The disclosure is in compliance with a federal or state law; or
2. The disclosure is necessary in order to protect the safety of the student or other individuals.

For directory information, unless the parent/eligible student has opted out

Under FERPA, schools may disclose “directory information” without consent unless the parent or eligible student has opte-out of the disclosure. Directory information is defined as information that would not generally be considered harmful or an invasion of privacy if released. The types of information that are typically considered directory information include:

-name
-address
-telephone listing
-date and place of birth
-major field of study
-dates of attendance
-degrees and awards received
-the most previous educational agency or institution attended by the student

How can a parent/eligible student opt out of the release of directory information?

In order to protect the privacy of students, the Family Educational Rights and Privacy Act (FERPA) requires schools to get written consent from the parent or eligible student before releasing any information from a student’s education records. However, there are some exceptions to this rule.

By giving written notice to the school

A parent or eligible student has the right to opt out of the release of directory information by giving written notice to the school. The opt-out notice must be given to the school in a timely manner, and it must specify which types of directory information the parent or eligible student does not want released.