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Jeanne M. Kincaid, Esq.Drummond Woodsum & MacMahon
40 Pleasant StreetPortsmouth, New Hampshire 03801
www.dwmlaw.com
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Issues
Records– Disclosure– Access
Privilege
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Records
Family Educational Rights and Privacy Act (FERPA) AKA Buckley Amendment - 20 USC § 1232g and 34 CFR Part 99
State laws may also apply
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What is a Record?
Any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche
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Example
An email message is a “record”
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What Is Not An Education Record
Records kept in sole possession of maker and not accessible to others
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Example
Personal notes in your drawer
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Contrast
A file that others may access
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What Is Not An Education Record
Treatment records - made or maintained by:– physician, psychiatrist, psychologist or other
recognized professional or paraprofessional– made, maintained or used only in connection
with treatment and– disclosed only to individuals providing
treatment
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What Is Not Treatment?
Records reflecting remedial educational activities or activities that are part of a program of instruction are education records; not treatment records
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Result
Student has no right to access treatment records
FERPA does not govern privacy of treatment records– State privacy laws likely do
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Query?
Is a learning disabilities assessment forwarded to the disability services office a treatment record?
NO!– Impact – it is an educational record
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Contrast
A psychological assessment received by the university’s counseling center of a client it is providing therapy
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Observations
Personal observations may be discussed with others if not based on information contained in a student record - consent of student not required
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Conduct in Educational Records
Educational records may contain information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student, other students or other members of the school community
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What is Disclosure?
To permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written, or electronic means
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Examples
Email communication Phone call Fax
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If the information you wish to disclose comes from an educational record, FERPA applies
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Record Disclosure Is it an education record?
• Records maintained by institution or its agent
• Compare treatment records
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When Is Consent Not Required?
institution discloses to school officials, including teachers, that it has determined have a “legitimate educational interest”
disclosure is in connection with a health or safety emergency when necessary to protect student or others
disclosure is to another institution where the student seeks or intends to enroll or where s/he is actually enrolled
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Disclosure to Teachers The Act does not prohibit disclosure of
such information to teachers and school officials who have legitimate educational interests in the student’s behavior
The Act does not prohibit disclosure of such information to teachers or school officials in other schools who have legitimate educational interests in the student’s behavior
Health or Safety Emergency
Standard: In light of the “totality of the circumstances”, institution determines there is an “articulable and significant threat to the health or safety of a student or other individuals”, disclosure is permitted to anyone deemed necessary to prevent the harm.
Record of disclosure must be kept
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Parental Disclosure
If student is 18 or attends a postsecondary institution, disclosure to the parent is only permitted if – consent of student
– student is claimed as dependent on parent’s income tax forms, or
– Health or safety emergency Disclosure is permissible - not required
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Rights of Student Inspect and review education records Seek amendment of records believed to be
inaccurate, misleading, or otherwise in violation of student’s privacy rights– Right to hearing
Consent to disclosure– But note the exceptions
Copy of records disclosed that student authorized, if requested
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Institutional Responsibility
Define who is considered a “school official”– You may want to define this phrase very
broadly, to include third parties not directly employed by the institution
What is meant by “legitimate educational interest”
Annual notice to include above and when disclosure is permitted to other institutions
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Other Laws
Section 504 - contains explicit confidentiality requirement
ADA– Titles II & III are silent– Title I (employment) contains strict
requirements
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Section 504 Preadmission inquiries are generally
prohibited– Affirmative action exception
“. . . after admission, may make inquiries on a confidential basis as to [disabilities] that may require accommodation.”
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ADA Title I Requirements
Separate files Disclosure only permitted to:
– Supervisors [restrictions & accommodations]– First aid personnel [if disability might require
emergency treatment]– Government officials
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Other Laws
State law privilege– Dictated by position (e.g., psychologist)– Most providers of disability services have no
privilege
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What Does a Privilege Do?
Restricts disclosure of communications made between the parties– much broader than “records”
Many states have exceptions based on imminent harm to persons and/or property
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Tips for Disability Service Providers
Check to make sure your college has defined who is a school official and what is a legitimate educational interest
If the student signs a consent form to release information, you are home free– But even then - carefully consider what
information should be disclosed
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Tips for Disability Service Providers
If the record is an educational record and the student refuses to authorize its release– Is the disclosure to a “school official”?– Does the official have a legitimate educational
interest?– Is there a health or safety emergency justifying
disclosure
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Tips for Disability Service Providers
Lock and key - keep information locked up and ensure information is protected to maximum extent
Check catalogs and brochures - do not guarantee confidentiality - you may not be able to honor it
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Suggested Language
The Office for Students with Disabilities is committed to keeping disability-related information confidential in accordance with state and federal laws
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Tips for Disability Service Providers
Remember that access to records need not be immediate
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Final Thought
Do not make these decisions alone When in doubt, consult supervisor or
institution’s legal counsel
