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Letter to Texas AG: Disclosure of Education Records

July 25, 2006

Ms. Katherine Minter Cary
Chief, Open Records Division
Office of the Attorney General
P. O. Box 12548
Austin, Texas 78711-2548

Dear Ms. Cary:

Letter to School District re: SES Providers Contacting Parents

August 10, 2007

[Letter to a School District]

Dear [School Official]:

We are providing guidance under the Family Educational Rights and Privacy Act (FERPA), as it pertains to your August 1, 2007 email memorandum entitled "Ensuring Student Privacy," which was addressed to Approved Supplemental Educational Services Providers ("ASSP" or "SES Providers"), and a copy of which was forwarded to my office.

How may a parent or eligible student file a FERPA complaint with the Department of Education?

A parent or eligible student may file a written complaint with the Family Policy Compliance Office regarding an alleged violation under of FERPA.  The complaint must be timely (submitted to the office within 180 days of the date that the complainant knew or reasonably knew of the violation) and state clearly and succinctly specific allegations of fact giving reasonable cause to believe that the school has violated FERPA.

May an educational agency or institution disclose directory information without prior consent?

Education records that have been appropriately designated as "directory information" by the educational agency or institution may be disclosed without prior consent.  See 34 CFR §§ 99.31(a)(11) and 99.37.  FERPA defines directory information as information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.  34 CFR § 99.3. 

Does a school have to explain or interpret education records when requested by a parent or eligible student?

FERPA requires that an educational agency or institution respond to reasonable requests for explanations and interpretations of education records.  34 CFR § 99.10(c).

What constitutes de-identified records and information?

Records and information are de-identified once all personally identifiable information has been removed including but not limited to any information that, alone or in combination is linkable to a specific student that a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.

Under FERPA, may an educational agency or institution disclose education records to any of its employees without consent?

No.  FERPA permits an educational agency or institution to disclose, without consent, personally identifiable information from students’ education records only to school officials within the educational agency or institution that the educational agency or institution has determined to have legitimate educational interests in the information. 34 CFR § 99.31(a)(1).  Generally, a school official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility.

Does an educational agency or institution have discretion over what education records it decides to create and keep?

Yes.  FERPA does not require schools to create education records nor does it require schools to maintain education records, unless there is an outstanding request by a parent or eligible student to inspect and review the records.

Source: 34 CFR § 99.10(e)

How long does an educational agency or institution have to comply with a request to view records?

FERPA requires that educational agencies and institutions comply with a request by a parent or eligible student for access to education records within a reasonable period of time, but not more than 45 days after receipt of a request.  Some States have laws that may require that parents and eligible students be granted access in a shorter time period.  34 CFR § 99.10(b).


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