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Key Revisions to FERPA Regulations

Final revisions to the FERPA regulations were published December 9, 2008 in the Federal Register.  Key changes include the following:

  • “Attendance” at a school for purposes of protection under FERPA includes attendance in person or by correspondence or electronic means for purposes of students not able to be physically present in the classroom;
  • A definition of “biometric record” has been added for purposes of “directory information” that may be disclosed upon prior notification to parents and students – this would include fingerprints, voiceprints, DNA sequence, retinal and facial characteristics and handwriting;
  • “Directory information” has been restricted so that it may not include a student’s social security number or student ID number, except as specifically provided;
  • Directory information may include a student ID number if the student ID number cannot be used to gain access to educational records without the use of another access identifier such as a password or other factor known only by the user;
  • “Disclosure” of an educational record does not include disclosure to the party that provided or created the record;
  • Grades on peer-graded papers are not educational records before they are collected and recorded by a teacher;
  • Personally identifiable information includes “information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the educational record relates” [in other words, an other wise anonymous or redacted record could become “personally identifiable” if the person requesting it knows the identity of the student who is the subject of the record – critical in the context of FOIA requests];
  • Records may be disclosed to another school where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure in for purposes related to the enrollment or transfer, and the annual notification to parents and students must include a notification that this is the policy of the educational agency;
  • Disclosure to consultants, contractors or other third parties may be considered disclosures to “school officials” if the person performs a function for which the institution would otherwise use employees, is otherwise under the control of the agency with respect to use and maintenance of educational records, and is subject to the conditions of use and redisclosure described in the regulations;
  • Provisions relating to the disclosure of information for purposes of a research study have been modified;
  • An educational agency must use reasonable methods to identify and authenticate the identity of parents, students, and school officials requesting information from educational records;
  • Records must be maintained of each request for access to an educational record and disclosure from an educational record, including names of State and federal officials and agencies requesting access;
  • A State or federal official who further discloses educational records after receiving them from the school district must record the names of the people to whom the information was disclosed and the legitimate interest in the information, and provide a copy of the record to the school district upon request; the district must obtain a copy of the disclosure listing and provide it to the parent upon request;
  • An educational agency may disclose information to appropriate parties including parents of an eligible student in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals;
  • If a disclosure is made under the health and safety exception, the educational agency must record the articulable and significant threat to the health or safety of a student or other individuals forming the basis for the disclosure, and the parties to whom the information has been disclosed.

School districts will need to review and revise their policies concerning disclosure of educational records to bring them into compliance with the new regulations, and will need to revise their annual disclosure statements published in student handbooks and other similar materials.