Office of Registration & Records

Fall 2001  
Nancy S. Footer, General Counsel
Bowling Green State University

1.  THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT
   
   The Family Educational Rights & Privacy Act, 20 USC 1232g, also known as FERPA or the Buckley Amendment, was enacted on August 21, 1974. Its implementing regulations may be found at 34 Code of Federal Regulations, Part 99. Congress passed FERPA in response to a growing public awareness about government recordkeeping and the dissemination of information commonly considered private in nature. It provides rights of inspection and prohibitions against unauthorized dissemination of educational information.
   
   
2. TO WHOM DOES THE ACT APPLY?
   
   The act applies to all public and private institutions of higher education that receive funds made available under programs administered by the Department of Education, including federal grant monies, Pell grants, Guaranteed Student Loan Programs, and other such funds. If an institution receives funds under one or more such programs, the regulations apply to the recipient as a whole, including each component or department within the institution. In other words, most institutions of higher education, whether public or private, fall under FERPA regulations. Elementary and secondary schools are also subject to FERPA. The act also applies to an agency, such as a state higher education system office, that "provides administrative control of or direction of, or provides service functions for … post secondary institutions."
   
   
3. DEFINITIONS
   
   Selected definitions include:
   
   
   1. Student—any individual who is or has been in attendance at an institution and about whom the institution maintains education records. Eligible students are those who are 18 years of age or older. This definition does not include applicants to an institution.
      
      

   2. Parent—parent of a student, including natural parent, guardian, or an individual acting as a parent in the absence of a parent or guardian. Full rights are to be afforded to both parents unless an order, state statute, or other legally binding document has revoked the parent's rights.

   3. Attendance—attendance in person or by correspondence. This definition also includes that period of time during which a student might be working under a work-study program. Note that it is not enough to be enrolled; the student must be physically present at the institution except in cases involving correspondence courses.

   4. Disclosure—to permit access to education records or the personally identifiable information in the records by any means, including oral, written, or electronic means.

   5. Personally identifiable information—student's name, parent and family member names, address of student and parent or family members, a personal identifier such as social security number or student number, a list of personal characteristics, or other information which would make the student's identity easily traceable.

   6. Directory information—information contained in education records which would not generally be considered harmful or an invasion of privacy if released. Bowling Green State University's directory information includes: Parent or legal guardian—name, address, and telephone number; Student—name, local and home address, local and home telephone number, electronic mail address, date and place of birth, major field of study, class standing, participation in recognized activities and sports, weight and height of athletes, dates of attendance, degrees, honors, and awards received, the most recent previous educational institution attended, status as a student employee, photographs of the student, and enrollment status (full time, part time). Note that this list is broader than that set forth in the regulations.

   7. Education records—those records that are directly related to a student and that are maintained by an educational institution. Education records do not include:

      1. Records of instructional, supervisory, and administrative personnel that are kept in the sole possession of the maker of the record and are not revealed to anyone except a substitute. Example: grade books and faculty instructional materials.

      2. Records of a law enforcement unit of an educational institution if the records are maintained separately from education records, maintained solely for enforcement purposes, and disclosed only to law enforcement officials of the same jurisdiction.

      3. Records relating to an individual who is employed by an educational institution that are maintained in the normal course of business, related solely to the individual as an employee, and are not available for any other purpose. Exception: records of an individual who is employed by the educational institution as a result of his or her status as a student are educational records and are not excepted from coverage under this section. Examples include employment records of graduate assistants and work-study students.

      4. Records that contain information about an individual after he or she is no longer a student at the institution.

      5. Records of a student that are made or maintained by a physician, psychologist, psychiatrist, or other recognized professional or paraprofessional acting in such capacity which are made or used only in connection with treatment of the student and are disclosed only to persons providing the treatment. Treatment does not include remedial educational activities.
         

4. DISCLOSURE OF RECORDS
    
   1. Disclosures of educational records generally take one of three forms—they are to the student, to a person or entity with the written consent of the student, or they are disclosed without the prior consent of the student but only under the circumstances described below. The student's right of inspection and review of his or her own records is covered in Section V.
      
      
   2. A student's education records may be disclosed without the student's prior consent if the request fits within one of the following categories
      
      
      1. Directory information (see definition in III.F.) unless the student has requested in writing that all or any portion of those items designated as directory information not be disclosed.
         
         
      2. The request is from an internal university official who has a legitimate educational interest (see definition in IV.E.) in the information.
         
         
      3. The request is from another educational institution where the student seeks or intends to enroll.
         
         
      4. The request is from authorized representatives of the Comptroller General of the U.S., the Secretary of Education, or state or local educational authorities.
         
         
      5. The request is in connection with financial aid that the student has applied for or received if the disclosure is for the purpose of determining eligibility, amount or conditions of aid, or to enforce the terms and conditions of the aid.
         
         
      6. The request is from organizations conducting studies for or on behalf of educational agencies to develop, validate, or administer predictive tests, student aid programs, or improve instruction.
         
         
      7. The request is by accrediting agencies to carry out accrediting functions.
         
         
      8. The request is by the parent or legal guardian of a dependent student, as defined by the Internal Revenue Code.
         
         
      9. The information is disclosed to comply with a lawfully issued subpoena or court order. The institution must make a reasonable effort to inform the student in advance of compliance unless the subpoena or court order expressly states that providing prior notice would compromise the confidentiality of an investigation or other legal proceeding. Counsel acting on behalf of a college or university may provide education records to a court without a subpoena or court order when the college or university has initiated legal action against a parent or student. In this circumstance, you must first alert the student or parent of your intention to provide records to the court.
         
         
      10. The disclosure is made in the event of an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.
          
          
      11. The request is for the final results of disciplinary proceedings against a student who is an alleged perpetrator of a violent crime (18 USC § 16) or non-forcible sex offense if the institution finds that the student committed a violation of the institution's rules or policies. The institution may only release the name of the student, violation committed, sanction imposed, and the name(s) of other student(s) involved, such as the victim or witness, but only with the prior written consent of that student.
          
          
      12. The disclosure is to the parent of a student under 18 unless that student has matriculated at an institution of higher education.
          
          
      13. Any violation of federal, state, or local law or of any rule or policy of the institution governing the use or possession of alcohol or controlled substances may be made to the parent or legal guardian if the student is under the age of 21 and the institution has determined that the student committed a disciplinary violation.
          
   3. If the information requested does not fit into one of the categories described above, you must obtain the student's consent prior to disclosing the records. The consent must be in writing, stating the date, the records to be released, the purpose of the disclosure, and the party to whom the disclosure may be made.
      
      
   4. FERPA imposes limitations on redisclosure unless the information was disclosed in connection with a health and safety emergency or the information disclosed meets the definition of directory information, was made in response to a court order or subpoena, or was to a student or parent. In all other circumstances, the recipient must inform the party receiving the information that the party cannot redisclose the information without the consent of the student and that the information may only be used for the purpose for which the disclosure was made.
      
      
   5. A university official has a legitimate educational interest in a student's education records if the official needs the information to fulfill his or her professional responsibilities. A university official is defined as faculty, administrative and classified staff, administrators, trustees, students serving on official university committees or assisting another university official in performing his or her duties, and third parties with whom the university has contracted such as attorneys, auditors, or collection agents.
      
      
   6. FERPA does not forbid or require an institution to disclose the personally identifiable information listed above unless it is at the request of a student or parent of a student younger than 18.
      
      
   7. An educational institution has a duty to record and maintain each request and release of personally identifiable information from a student's educational record except when the request is received from an institution official, a parent or eligible student, a person with written consent, or when the request is for directory information.
      
      
   8. A student's privacy rights under FERPA terminates upon death.
      
      
5. RIGHTS OF INSPECTION AND REVIEW
   
   
   1. FERPA provides that an institution must allow an eligible student to inspect and review his or her education records. The educational agency must provide the records no later than 45 days after requested. The institution must respond to reasonable requests for explanations and interpretations of the records. You may not destroy records if there is an outstanding request for inspection. FERPA does not require that you make the following records available for review:
      
      
      1. Financial records of the parents; and
         
         
      2. Confidential letters and statements of recommendation if the student has waived the right to review and inspect these documents and the letters are related to the student's admission, application for employment, or receipt of an honor or honorary recognition. The waiver is valid only if it is not a condition of admission to or receipt of a benefit or service from the institution, and it is in writing and signed by the student. If the student provides such a waiver, the student shall receive, upon request, the names of the persons providing the recommendations, and the institution shall not use the letters for any purpose other than for which they were originally intended. The student may revoke the waiver in writing; however, revocation only affects documents received after the date of the revocation. In other words, a student may not revoke the waiver in order to see documents already received.
         
         
   2. If a student believes that his or her education records contain inaccurate or misleading information or information that violates the student's right to privacy, the student may request that the institution amend the records. If the institution does not agree, it shall inform the student in writing and advise the student of the right to a hearing. If, as a result of the hearing, the institution agrees with the student, it shall amend the record and notify the student in writing. If the institution does not agree, it shall advise the student that he or she may place a written statement in the file contesting the information. If the student chooses this option, the statement must be maintained with the contested information and disclosed in conjunction with any release of the contested information. The hearing must meet the following minimum requirements:
      
      
      1. it must be held within a reasonable time after the request;
         
         
      2. the student must be provided reasonable notice of the date, place, and time;
         
         
      3. the individual conducting the hearing must not have a direct interest in the outcome;
         
         
      4. the student must have a fair opportunity to present his or her case and may be assisted by an attorney; and,
         
      5. the decision must be in writing and rendered within a reasonable time after the hearing. It must be based solely on the evidence presented at the hearing and must include a summary of the evidence and the reasons for the decision.
         
         
   3. The courts have ruled that FERPA does not provide a means by which a student may obtain information on how a particular grade was assigned. "At most, a student is only entitled to know whether or not the assigned grade was recorded accurately in the student's record." Tarka v. Cunningham, 917 F. 2d. 890 (5th Cir. 1990).
      
      
6. ANNUAL NOTIFICATION
   
   
   1. FERPA requires that each covered institution provide to its students an annual notification of rights under the act. The BGSU notification can be found in the Student Handbook.
      
      
   2. An institution that wishes to disclose directory information must provide all students a notice that includes the list of directory information and the manner and time frame in which a student may prohibit the disclosure of directory information. Many institutions provide this information along with their annual notification of rights. The BGSU list of Directory Information can be found in the Student Handbook.

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