Sept. 21, 2014

LSC FERPA Workshop

October 25, 2016

When in doubt, don’t give it out!

What is FERPA?

– Family Education Rights and Privacy Act• The Family Educational Rights and Privacy Act (FERPA) (20

U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.

– FERPA is enforced by the Family Policy Compliance Office under the Department of Education

FERPA Joke

FERPA Joke

Key Concepts

• Required annual notification– Each Fall, Spring, and Summer semester, an email is sent to all

enrolled students mylonestar.edu student email account notifying them of their rights under FERPA.

• Written permission required for disclosure of student education records

• The exceptions to written consent of students• Students’ rights• The “musts” and “mays” in FERPA• Parents• Legitimate Educational Interest

Important Definitions

– Eligible Student• A student attending the College at any age.

– Education Record• Those records that contain information directly related to a student

and which are maintained by the College or by a party acting for the College.

• The medium is irrelevant. A student’s education record may be:– A document in the records and grades office– A class list on your desk– A electronic form on your computer screen

• NOT Education Records:– Sole Possession Records (Private Notes), Campus Law Enforcement

Records, Employment Records (excluding student employment records), Medical Records, Alumni Record

Important Definitions

• Not Education Record– Sole Possession Records

• Made by one person as an individual observation or recollection, are kept in the possession of the maker, and are only shared with a temporary substitute.

• Narrowly defined.• Not emails.• Sharing them or placing in an area others could see them make

them education records subject to FERPA.• Best advice:

– If you don’t want it reviewed, don’t write it down.

Story Time

• At an institution in the Midwest, the Title IX Coordinator (Coordinator) was investigating a complaint filed by a student/complainant with the State’s Department of Human Rights. The student/complainant alleged sexual harassment by a faculty member. During the investigation, the Coordinator interviewed all students who may have observed the harassment. Each interview was done privately and individually. The students’ responses were written down by the Coordinator. The Coordinator did not show the responses to the students or anyone else. The interviews were maintained by the Coordinator in a locked cabinet. No one else had access. The Coordinator reviewed the notes only when responding to the Dept. of Human Rights. Years later, the student/complainant learned of the notes and demanded to see them under FERPA as education records. The Coordinator claimed sole possession. The student/complainant filed a complaint with the FPCO.

• Was the student/complainant properly denied access? Were the notes “sole possession”?

Story Time

• Thoughts?• NOT sole possession!• The FPCO determined that since the notes had been “…

prepared with the assistance or participation of others, such as the students interviewed…”, the notes are education records and the student/complainant must be provided access to these records under FERPA. The notes were redacted to protect the privacy of the students interviewed and were supplied to the student/complainant.

Important Definitions

• Education Record cont’d– If you have a record that is:

• Maintained by Lone Star College• Personally identifiable to a student (directly related to a

student and from which a student can be identified)• Not one of the excluded categories of records…

– …then, you have an education record and it is subject to FERPA.

Important Definitions

– Directory Information (See Bookmark)• Student’s name, classification, full or part-time enrollment,

program of study, dates of enrollment, degrees and certificates received, and awards and honors received.

• Found in Board Policy Manual Section VI.H. Student Records.– Parent

• A natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.

– Personally Identifiable Information (PII)• The student’s name;• Name of the student’s parent or other family members;• Address of the student or student’s family;• A personal identifier, such as a social security number, student

number, or biometric record;

Important Definitions

• PII continued– Other direct identifiers, such as the student’s date of birth,

place of birth, and mother’s maiden name;– Other information that, alone or in combination, is linked or

linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or

– Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

– 34 CFR § 99.3

Important Definitions

• School Official– “School official" is not defined in the statute or regulations, the

FPCO generally interprets the term to include parties such as: professors; instructors; administrators; health staff; counselors; attorneys; clerical staff; trustees; members of committees and disciplinary boards; and a contractor, volunteer or other party to whom the school has outsourced institutional services or functions.

• Legitimate Educational Interest– Also not defined by FERPA—left up to the schools to define. – A school official typically has a legitimate educational interest if

the official needs to review an education record in order to fulfill his or her professional responsibilities for Lone Star College.

Another Story

• Dear Assistant Registrar, • I am writing concerning the release of information about my educational record to my ex-

husband, Joe, the Director of XXXX at your University. I refer to the unofficial grade transcript that I gave to you during our meeting last week. I was separated from him in December 2007 and divorced in October 2008. We are currently involved in a court decision concerning custody of our two children. In his answers to interrogatories file with my attorney on February 11, 2009, my ex-husband wrote that he would submit the educational record of me as evidence at the trial. My attorney said that he didn’t know how my ex-husband would be able to supply the court with a copy of my transcript since that information is protected. On March 3, his lawyer gave my lawyer several documents he intended to use as exhibits in court, including my grade transcript. The hearing date was March 4. At the hearing, his attorney did not submit my transcript itself, but he submitted a sheet showing a set of bar graphs representing my academic progress at your University as opposed to his progress at Yale. This sheet had been prepared by his new wife, a statistics professor. In his testimony, my ex-husband also referenced to my grades since the divorce, and to the fact that I had completed the required number of hours for an M.A., but had not yet completed my thesis. My ex-husband has obtained my unofficial transcript to further his case against me as a custodial parent. I am angry that he has gotten this personal information about me, and has shared it with his lawyer, my lawyer, his wife, and perhaps other people as well. I am proud of my academic record, but it is my record to disclose…

Another Story

• Thoughts?• Obvious FERPA violation.• Ex-husband was a school official but had NO legitimate educational

interest.• Trivia question:

– Can the University be sued for releasing that information? – Gonzaga University v. John Doe– The Supreme Court, in a 7-2 decision, ruled that FERPA does not create a

personal or "private" cause of action by an individual against an institution.– Doesn’t mean you shouldn’t worry about FERPA but at least you know Lone Star

College can’t be sued because of it. The FPCO through the DOE could pull our federal funding, i.e. financial aid, costing millions of dollars though. So still pretty serious.

Another FERPA Joke

• Knock knock• Who’s there?• FERPA• FERPA who?• Sorry I can’t tell you that…

When do FERPA rights begin?

• FERPA rights begin when the student is “in attendance” or “enrolled” in Lone Star College.

• When are students in attendance/enrolled?• Current Lone Star College Policy does not define this so

the default rule is:– A student is considered in attendance/enrolled on the day

the student begins attending class. – This means admitted students do not yet have FERPA rights

until day one of class.

FERPA Rights

• Eligible Student Rights– Right to inspect and review education records within 45 days of

request.– Right to seek to amend education records.– Right to consent to the disclosure of information from education

records, except as provided by law.• Everyone else

– None!– In post secondary education the FERPA rights transfer to the

student completely.

FERPA Rights

• Limitations on Right to Inspect– Parental financial information– Confidential letters and recommendations to which the student

has waived his/her right of inspection– Education records containing information about more than one

student• LSC must permit access to that part of the record which pertains

only to the inquiring student

FERPA Rights

• Lone Star College MUST disclose– Education records without written consent of students only to

students who request to see information from their own records.

• Lone Star College MAY disclose– With student’s written consent to third parties or– Without student’s consent under limited circumstances.– The decision authority of whether to disclose is discussed

later. • Consent is provided by student via Authorization to

Release Education Records form found on OGC website: http://www.lonestar.edu/11792.htm

When do FERPA rights end?

• End of semester?• Upon graduation?• After statutory record retention has ended?• Death of student?• 100 years?• Correct answer:

– Death of student

Disclosure without Consent

• Lone Star College MAY disclose education records without student consent to the following:

• School Officials with legitimate educational interest• US Comptroller, Secretary of DOE, US Attorney General, Texas

Educational Authorities• With notice to the student, officials of other institutions in which the

student seeks to enroll• Persons or organizations providing financial aid to student• Persons or organizations conducting studies to develop, validate,

and administer student aid programs, or to improve instruction• Accrediting organizations• Parents who can claim the student as a current tax dependent• Persons named in a subpoena (discussed more later)• A court if it involves litigation between the student and LSC

Disclosure without Consent, cont’d

• Lone Star College MAY disclose education records without student consent to the following:

• Persons in an emergency if there is an articulable threat to the student or other persons

• An alleged victim of any crime of violence of the results of any LSC disciplinary proceeding against the alleged perpetrator of that crime with respect to that crime

• The public regarding the “final results” of an LSC disciplinary proceeding so long as the student has been determined to be the alleged perpetrator of a crime of violence or non-forcible sex offense

• Parents of a student who illegally possesses alcohol or a controlled substance

• Parents of a student who is involved in a health or safety emergency

Records of Disclosures

• LSC is required to maintain records of requests and disclosures of education records.– These records will include the names and addresses of the

requestor and his/her indicated interest in the records.• Don’t have to keep the record for:

– Requests from students for their own use– Disclosures in response to written requests from students– Requests made by school officials– Those specified as directory information

• So keep a record for any release of non-directory information made to a third party who is not a school official.

TPIA

• Texas Public Information Act– The Office of Public Records coordinates the release of public

information and ensures compliance by Lone Star College with the Texas Public Information Act (TPIA) and the Family Educational Rights and Privacy Act (FERPA). Under the direction of the Office of the General Counsel, Public Records is responsible for responding to all requests for public information and for providing information to College staff to ensure the proper management of each request received by the College.

– Public information email:• PublicRecords@LoneStar.edu

FERPA Advisories from OGC

• May 26, 2016• Detailed exceptions to consent requirement to share education

records.– The Family Educational Rights and Privacy Act (FERPA)

affords postsecondary students, of any age, the right to access their educational records, have the records amended, and the right to some control over disclosure. The College can however disclose a student’s education records to the student’s parent, without the student’s consent, in the following circumstances:

• 1. Student is Either Parent’s Tax Dependent.• 2. Health and Safety Emergency• 3. Student Illegally Possesses Alcohol or a Controlled Substance.

FERPA Advisories from OGC

• June 20, 2016– Authorization to Release Education Records Form Revision– The Code of Federal Regulation Title 34 Section 99.5 (a)(1)

states, “When a student becomes an eligible student, the rights accorded to, and consent required of, parents under this part transfer from the parents to the student.”

– For this reason, the OGC has revised the standard LSC Authorization to Release Education Records form to no longer require a parental signature. Furthermore, the student’s signature will no longer need to be notarized, as this is also not required by law. The updated form may be found on the Office of the General Counsel’s website at: http://www.lonestar.edu/11792.htm

FERPA Advisories from OGC

• July 11, 2016• Disclosures to Parents under FERPA• Filing a FERPA designation allows the College to disclose

otherwise private records to the person identified in the FERPA designation, but it does not require it. The only disclosure requirement in FERPA is to the student. Even with the student’s consent, the College is not required to disclose the records to anyone else (including parents). The decision regarding whether or not to engage in this sort of dialogue with the parents is up to the College under FERPA. Our current Policy Manual is silent on the matter.

• The Chancellor would like all non-directory information to be released at the Vice President / Associate Vice Chancellor level or higher to ensure consistency across the College.*

FERPA Advisories from OGC

• August 29, 2016• Disclosures to Parents under FERPA, amended

Common Concerns

• Parents– Current directive from the Chancellor is to have parents referred

to the FERPA designee on each college.– Practical effect:

• You will not share education records with anyone but the student.• You can still meet with parents and discuss your policies generally

(if you choose)

Common Concerns

• Email– Do not email grades or other education records to students.– BUT if you must, only send it to the Lone Star email account and

NEVER to a personal email.– OGC strongly recommends not emailing students education

records.

Common Concerns

• Phone calls – You should NEVER discuss education records with a student

over the phone.– You have no way to verify who is on the other end of the line.– Students may provide you with whatever information they’d like

over the phone but you should not affirm or give out any information to the student in return.

Common Concerns

• Posting Grades– The public posting of grades, by the student’s name, LSC ID

number, or SSN without the student’s written permission to do so is a violation of FERPA.

– Nothing in FERPA precludes an instructor from assigning individual numbers to students for the purpose of posting grades as long as those numbers are known only to the student and instructor who assigned them.

– Do not post alphabetically.

Common Concerns

• Subpoenas– If you receive a subpoena for any records, employee or student,

submit it to OGC for review immediately.– You will submit it through ServiceNow. – For students, a FERPA Notice is required to be sent out to

students informing them of the subpoena unless it is a Grand Jury subpoena or from a law enforcement agency that specifies not to notify the student.

FERPA Information Sources

• Family Policy Compliance Office– 202-260-3887– ferpa@ed.gov– www2.ed.gov/policy/gen/guid/fpco

• Office of the General Counsel– http://www.lonestar.edu/general-counsel.htm– Call or email us anytime, we’re here to help!

FERPA

• Remember: When in doubt, don’t give it out!• General Questions?

– If you have a fact specific scenario please email me at seth.b.larsen@lonestar.edu

Thank you