Student Records: Access and Challenge
The School District shall comply with the provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). Under its provisions, parents/guardians and noncustodial parent(s), whose rights are not limited by court order or formal agreement, of a student under eighteen (18), or a student who is eighteen (18) years of age or older or who is attending an institution of post-secondary education, have a right to inspect and review any and all education records maintained by the School District.
The term “education records” is defined as all records, files, documents and other materials containing information directly related to a student; and maintained by the education agency or institution, or by a person acting for such agency or institution (34 Code of Federal Regulations (CFR) Section 99.3). This includes all records regardless of medium, including, but not limited to, handwriting, videotape or audiotape, electronic or computer files, film, print, microfilm, and microfiche.
In addition, for students who attend a public school district, all records pertaining to services provided under the Individuals with Disabilities Education Act (IDEA) are considered “education records” under FERPA. As such, they are subject to the confidentiality provisions of both Acts.
Personal notes made by teachers or other staff, on the other hand, are not considered education records if they are:
- a) Kept in the sole possession of the maker;
- b) Not accessible or revealed to any other person except a temporary substitute; and
- c) Used only as a memory aid.
Additionally FERPA does not prohibit a school official from disclosing information about a student if the information is obtained through the school official’s personal knowledge or observation and not from the student’s education records.
Records created and maintained by a law enforcement unit for law enforcement purposes are also excluded.
Access to Student Records
The Board directs that administrative regulations and procedures be formulated to comply with the provisions of federal law relating to the availability of student records. The purpose of such regulations and procedures shall be to make available to the parents/guardians of students and noncustodial parent(s) whose rights are not limited by court order or formal agreement, or students who are eighteen (18) years of age or older or who are attending an institution of post-secondary education, student records, and files on students, and to ensure the confidentiality of such records with respect to third parties.
Under FERPA, unless otherwise exempted in accordance with law and regulation, the District may release personally identifiable information (PII) contained in student education records only if it has received a “signed and dated written consent” from a parent or eligible student. Signed and dated written consent may include a record and signature in electronic form provided that such signature:
- a) Identifies and authenticates a particular person as the source of the electronic consent; and
- b) Indicates such person’s approval of the information contained in the electronic consent.
Without the consent of a parent or eligible student, a district may release a student’s information or records when it is:
- a) Directory Information and Limited Directory Information
- Directory information is information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed. Limited Directory Information Disclosure means that the District may limit disclosure of its designated directory information to specific parties, for specific purposes, or both. The intent is to allow schools the option to implement policies that allow for the disclosure of student information for uses such as yearbooks, but restrict disclosure for more potentially dangerous purposes. The District shall limit disclosure of its designated directory information as otherwise specified in its public notice to parents of students in attendance and eligible students in attendance.
- b) To School Officials who have a Legitimate Educational Interest
- To other school officials, including teachers, within the educational agency or institution whom the school has determined to have legitimate educational interests. An educational interest includes the behavior of a student and disciplinary action taken against such student for conduct that posed a significant risk to the safety or well-being of the student, other students or other members of the school community. A school official has a legitimate educational interest if the official needs to review an education record in order to fulfill his/her professional responsibility.
- c) To Another Educational Institution
- The District may disclose any and all educational records, including disciplinary records and records that were created as a result of a student receiving special education services under Part B of IDEA, to another school or postsecondary institution at which the student seeks or intends to enroll, or after the student has enrolled or transferred, so long as the disclosure is for purposes related to the student’s enrollment or transfer. Parental consent is not required for transferring education records if the school’s annual FERPA notification indicates that such disclosures may be made. In the absence of information about disclosures in the annual FERPA notification, school officials must make a reasonable attempt to notify the parent about the disclosure, unless the parent initiated the disclosure. Additionally, upon request, schools must provide a copy of the information disclosed and an opportunity for a hearing.
- d) For Health and Safety Emergency Reasons
- School districts must balance the need to protect students’ personally identifiable information with the need to address issues of school safety and emergency preparedness. Under FERPA, if an educational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records, without consent, to any person whose knowledge of the information is necessary to protect the health and safety of the student or other individuals during the period of the health or safety emergency. School districts may release information from records to appropriate parties including, but not limited to, parents, law enforcement officials and medical personnel. A school district’s determination that there is an articulable and significant threat to the health or safety of a student or other individuals shall be based upon a totality of the circumstances, including the information available, at the time the determination is made. The school district must record the articulable and significant threat that formed the basis for the disclosure and maintain this record for as long as the student’s education records are maintained.
- e) To Juvenile Justice Systems
- Information may be disclosed to state and local officials or authorities to whom information is specifically allowed to be reported or disclosed by a state statute that concerns the juvenile justice system and the system’s ability to effectively serve, prior to adjudication, the student whose records were released. In such cases the official or authority must certify in writing that the information will not be disclosed to any other party except as provided under law without prior written consent.
- f) To Foster Care Agencies
- A district may release records to an agency caseworker or other representative of a state or local child welfare agency, who has the right to access a student’s case plan, when the agency or organization is legally responsible, for the care and protection of the student. This does not give a child welfare agency the right to look into any non-foster care student’s records, without parental consent, when there has been a mere allegation of abuse or neglect, absent an order or subpoena (see below).
- g) Pursuant to a Subpoena or Court Order
- When a district receives a subpoena or court order for the release of records the District must make a reasonable effort to notify the parent/guardian or eligible student of the order or subpoena in advance of compliance. This allows the parent/guardian or eligible student to seek protective action against the subpoena or order before the release of the records.
- Districts may disclose a student’s records without first notifying parents/guardians or eligible students if the disclosure is:
- 1. Based on a subpoena in which the court orders, for good cause shown, not to reveal to any person the existence or contents of the subpoena or any information furnished pursuant to the subpoena;
- 2. Pursuant to a judicial order in cases where the parents are a party to a court proceeding involving child abuse or neglect or dependency matters, and the order is issued in the context of that proceeding; or
- 3. Made to a court (with or without an order or subpoena) when a District is involved in a legal action against a parent or student and the records are relevant to the matter.
- h) For Financial Aid Purposes
- Pertinent information may be released in connection with the determination of eligibility, amount, conditions and enforcement of terms of a student’s financial aid.
- i) To Accrediting Organizations
- Disclosure of a student’s records may be made to an organization in which that student seeks accreditation, in order to carry out their accrediting function.
- j) To Parents of a Dependent Student
- Even when a student turns eighteen (18) years of age or older a District may disclose education records to that student’s parents, without the student’s consent, if the student is claimed as a dependent for federal income tax purposes by either parent.
- k) For Audit/Evaluation Purposes
- The audit or evaluation exception allows for the disclosure of PII from education records without consent to authorized representatives of the Comptroller General of the U.S., the Attorney General, the Secretary of Education, federal, state or local educational authorities (“FERPA permitted” entities). Under this exception, PII from education records must be used to audit or evaluate a federal or state supported education program, or to enforce or comply with federal legal requirements that relate to those education programs (audit, evaluation, or enforcement or compliance activity).
- The District may, from time to time, disclose PII from education records without consent to authorized representatives of the entities listed above. The District may also, from time to time, designate its own authorized representative who may access PII without consent in connection with an audit or evaluation of an education program within the District. As an example, the District might designate a university as its authorized representative in order to disclose, without consent, PII from education records on its former students to the university. The university could then disclose, without consent, transcript data on those former students attending the university to allow the District to evaluate how effectively the District prepared its students for success in postsecondary education.
- l) For Conducting Studies
- This exception allows for the disclosure of PII from education records without consent to organizations conducting studies for, or on behalf of, schools, school districts or postsecondary institutions. Studies can be for the purpose of developing, validating, or administering predictive tests; administering student aid programs; or improving instruction.
- The District may, from time to time, disclose PII from education records without consent to such organizations conducting studies for the District, in accordance with its obligations under FERPA.
In addition, other entities outside of the District may, from time to time, disclose PII from education records that the District has previously shared with that entity, to organizations conducting studies on behalf of the District. For example, a State Education Agency (SEA) may disclose PII from education records provided by the District without consent to an organization for the purpose of conducting a study that compares program outcomes across school districts to further assess the effectiveness of such programs with the goal of providing the best instruction.
Required Agreements for the Studies or Audit/Evaluation Exceptions (see items k and l)
To the extent required by law, the District shall enter into a written agreement with organizations conducting studies for the District, or, with its designated authorized representatives in connection with audits or evaluations of education programs within the District. In the event that the District discloses PII from education records to its own designated authorized representative in connection with an audit or evaluation of an educational program within the District, it shall use reasonable methods to ensure to the greatest extent practicable that its designated authorized representative complies with FERPA and its regulations.
State Exception for Student Teacher Videotaped Instruction
Although not specifically listed in the enumerated exceptions to FERPA, New York State Regulations specify that schools are required to allow student teachers to videotape themselves providing instruction in a classroom to meet the instruction component for teaching certification. The video must remain confidential and is not subject to viewing or disclosure to an individual or entity other than the student teacher applicant and personnel engaged in the determination of that student teacher’s certification.
Challenge to Student Records
Parents/guardians of a student under the age of eighteen (18), or a student who is eighteen (18) years of age or older or who is attending an institution of post-secondary education, shall have an opportunity for a hearing to challenge the content of the school records, to ensure that the records are not inaccurate, misleading, or otherwise in violation of the privacy of students, and to provide an opportunity for the correction or deletion of any such inaccurate, misleading, or otherwise inappropriate data contained therein.
Release of Information to the Noncustodial Parent
The District may presume that the noncustodial parent has the authority to request information concerning his/her child and release such information upon request. If the custodial parent wishes to limit the noncustodial parent’s access to the records, it would be his/her responsibility to obtain and present to the school a legally binding instrument that prevents the release of said information.