Monday, March 16, 2015

Law Balances Student Record Access and Privacy

Q:       What laws cover student educational records?
A:        Student education records are protected by federal law, the Family Educational Rights and Privacy Act (FERPA), and Ohio’s student privacy law (Ohio Revised Code § 3319.321). These laws are similar in application, with some minor differences.

Q:       What do the laws require?
A:        FERPA and Ohio’s student privacy law have two primary functions in common. Both laws: 1) guarantee parental access to education records, and 2) prohibit the disclosure of education records to third parties without parental consent.

Q:       What is considered an “education record?”
A:        An “education record” includes records which: 1) contain information directly related to a student, and 2) are maintained by a school. This could include birth certificates, names of parents, immunization records, grades, disciplinary records, etc.

Q:       How is access to education records guaranteed?
A:        Both FERPA and Ohio’s student privacy law require schools to provide parental access to the education records of children under age 18. Parents have the right to see everything in the student’s education record, except information about other students or information protected by another state or federal law. Schools must comply with a request for access within a reasonable period of time, but in no case more than 45 days after the request.

Q:       How are education records protected from third parties? 
A:        Both laws prohibit the disclosure of “personally identifiable information” in education records to third parties without the prior written consent of the parent. Personally identifiable information generally includes any information that would make the student’s identity traceable.

Q:       Are there exceptions that allow disclosure without consent?
A:        Yes. Several exceptions allow disclosure without parental consent. For example, schools may release records to school officials with “legitimate educational interests,” such as disclosure of student records to the student’s teacher or to an in-school therapist treating the student.
            Other exceptions allow schools to release education records to a school where the student is transferring, to persons acting with a subpoena, or to health and safety personnel during an emergency.

Q:       What is directory information?
A:        Through its policies, school districts may designate certain student information as “directory information.” Directory information generally includes information that could be found in a school yearbook, playbill or athletic program, such as a student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, dates of attendance and graduation, and awards received.
            Directory information may be disclosed without prior written consent. School districts must provide public notice of designated categories of directory information and allow a reasonable time for parents to “opt-out” of the release of this information.

Q:       Do students have rights to review their educational records before they turn age 18?
A:        Not really. Although both laws allow elementary and secondary schools to give students under age 18 the right to inspect and review their own educational records, the schools are not required to give minors this right. Parents, however, must be allowed to inspect and review their minor children’s education records.

Q:       Does a student have the right to view his or her records at age 18?
A:        Yes. All rights granted to parents under FERPA and Ohio law transfer to the student when the student reaches age 18, or when the student starts attending a postsecondary institution. This includes the right to access education records and to consent to the release of education records.

Q:       Can the parents of a college-age student access their child’s education records?
A:        Maybe. A postsecondary institution may provide parents with access to their child’s education records, without the child’s consent, if the parents claim the student as a dependent for IRS tax purposes. A college or university may also notify parents of students under age 21 if the student has violated any law or policy concerning the use or possession of alcohol or a controlled substance.

Q:       What schools are required to comply with these student record laws?
A:        The federal FERPA law applies to all educational agencies receiving federal funds under any program administered by the U.S. Department of Education. This includes all public school districts and most private and public postsecondary institutions. Some private schools may not receive funds from the U.S. Department of Education and, therefore, may not be subject to FERPA. Ohio’s student privacy law only applies to public schools in Ohio.

Q:       Does divorce affect a parent’s right to see his or her child’s educational records?
A:        A parent who is separated, divorced and/or not the student’s residential parent is permitted access to any records under the same terms and conditions as the residential parent, provided that the parents are not subject to any parenting agreement or court order to the contrary. Separated, divorced and/or non-residential parents may also provide the written parental consent to release records, barring a written parenting agreement or court order to the contrary.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Columbus attorney Mark A. Weiker of Albeit Weiker, LLP. The column offers general information about the law.  Seek an attorney’s advice before applying this information to a legal problem.

Labels: , , ,


Post a Comment

Subscribe to Post Comments [Atom]

<< Home