The Family Policy Compliance Office is excited to announce the launch  of the new Student Privacy Website! This new website replaces both the Privacy Technical Assistance Center’s and the Family Policy Compliance Office’s sites.  The Student Privacy Website can be found at:  https://studentprivacy.ed.gov. Be sure to update your bookmarks accordingly!

Are SEAs required to have written agreements with the CWA or tribal organization prior to redisclosing education records to the CWA or tribal organization?

No.  The written agreement requirement of FERPA does not apply to disclosures of education records made under this exception to FERPA’s general consent requirement including the redisclosure of education records by an SEA.  The written agreement requirement applies only in the context of other exceptions to FERPA’s general consent requirement (e.g.., the studies exception and the audit/evaluation exception).  See §§ 99.31(a)(6) and 99.35(a)(3).

Must the SEA record the redisclosure of education records to the CWA or tribal organization?

Yes.  Section 99.32(b)(2)(i) of the FERPA regulations generally requires that an SEA that makes further disclosures of PII from education records must record the names of the additional parties (e.g., the CWA) to which it discloses PII from education records on behalf of the LEA and their legitimate interests in the information under FERPA.  However, the SEA would not have to make a record of the redisclosure if the LEA had made a record of the disclosure to the SEA and included in that record the name of the CWA or tribal organization and its legitimate interest (i.e., to permit the CWA or

May an SEA redisclose, on behalf of its LEAs, the education records of students in foster care placement to the students’ CWAs or tribal organizations that are legally responsible for their care and protection?

Yes.  An SEA may redisclose PII from the education records of students in foster care placement to a CWA or tribal organization that is legally responsible for the care and protection of the student.  The disclosure must be made on behalf of the LEA, as permitted under § 99.33(b)(1) of the FERPA regulations. 

Would a CWA or tribal organization be subject to FERPA’s “five-year rule” if it improperly redisclosed PII from education records?

Yes.  FERPA requires that entities to which educational agencies and institutions disclose PII from education records protect that information from further disclosure.  See § 99.33.  Additionally, § 99.67(e) of the FERPA regulations provides that if the Family Policy Compliance Office (FPCO) determines that a third party outside the LEA or school improperly redisclosed PII from education records in violation of § 99.33 of the FERPA regulations, then the educational agency or institution may not provide that third party access to education records for a minimum period of five years.

Are LEAs or schools required to have written agreements with the CWA or tribal organization prior to disclosing PII from education records to the welfare agency or tribal organization?

No.  The written agreement requirements in the FERPA regulations do not apply to a disclosure of PII from education records made under this particular exception by an LEA or school.  However, LEAs and schools may want to consider a written agreement, data sharing agreement, or memorandum of understanding (MOU) with a CWA or tribal organization to ensure that the CWA or tribal organization is aware of its responsibility under FERPA to protect PII from education records from unauthorized disclosure. 

How long must the CWA or tribal organization maintain the education records of a child, and what must the CWA or tribal organization do with the education records when no longer needed?

Some of the FERPA exceptions to consent require the recipient of education records to destroy PII from education records when it is no longer needed; however, the 2013 amendment to FERPA did not include any requirement related to the maintenance or destruction of PII from education records disclosed to a CWA or tribal organization.  We recommend that the school or LEA and the CWA or tribal organization work together to determine how long the CWA or tribal organization should maintain the education records disclosed under this exception.

When a State educational agency (SEA) or LEA discloses PII from education records to a CWA or tribal organization under the exception in FERPA, may the SEA or LEA and the CWA or tribal organization collaborate...

No.  The PII from education records disclosed to the CWA or tribal organization under the exception in FERPA must only be used for the purpose of addressing the education needs of children in foster care placement.  Thus, the PII from education records disclosed under the exception to FERPA may not be used for any other purpose, including to audit or evaluate a Federal- or State-supported education program.  

Must the CWA or tribal organization record any redisclosure of PII from education records made by the welfare agency or tribal organization to an individual or entity?

No.  FERPA does not require the CWA or tribal organization to record any redisclosure of PII from education records that it may make to an individual or entity, such as a contractor providing services to address a student’s education needs.  However, if the CWA or tribal organization does redisclose PII from an education record on a student in foster care placement to anyone other than an agency- or organization-employed caseworker or other representative who has the right to access a student’s case plan, the Department recommends, as a good data management practice, that the CWA or tribal

May a CWA or tribal organization redisclose PII from education records to other individuals or entities?

Yes, in some cases, FERPA does permit a CWA or tribal organization to redisclose PII from education records for a limited purpose.  Specifically, it provides that redisclosures may only be made to an individual or entity “engaged in addressing the student’s education needs” and authorized by such agency or organization to receive such disclosure and such disclosure must be consistent with the State or tribal laws applicable to protecting the confidentiality of a student’s education records.  20 U.S.C. § 1232g(b)(1)(L).

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