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Family Educational Rights and Privacy rule (2009)

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The Family Educational Rights and Privacy rule is a significant rule issued by the U.S. Department of Education effective January 8, 2009, that amended department regulations concerning the confidentiality of student records. The rule implemented amendments to the Family Educational Rights and Privacy Act (FERPA) outlined in the USA Patriot Act and the Campus Sex Crimes Prevention Act, as well as two U.S. Supreme Court decisions regarding FERPA.[1]

HIGHLIGHTS
  • Name: Family Educational Rights and Privacy
  • Agency: Office of Planning, Evaluation, and Policy Development, Department of Education
  • Type of significant rule: Economically significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    Background

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    President Gerald Ford signed the Family Educational Rights and Privacy Act (FERPA) into law in 1974 to protect the confidentiality of student records. The law was sponsored by then-U.S. Senator James Buckley (R) as an amendment to extend the Elementary and Secondary Education Act of 1965. The law grants students the right to review their education records and prohibits institutions from disclosing education records without written consent from the student or the student's parents (for children under the age of 18). There are exceptions to FERPA, including the release of records to education officials or other institutions.[4]

    Congress later passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) of 2001 and the Campus Sex Crimes Prevention Act of 2000. The laws contained amendments to FERPA and directed the U.S. Department of Education to update regulations "while ensuring that personally identifiable information about students remains protected from unauthorized disclosure." Two U.S. Supreme Court decisions in 2002 alleging FERPA violations, Owasso Independent School Dist. No. I-011 v. Falvo (2002) and Gonzaga University v. Doe, also prompted the U.S. Department of Education to update FERPA regulations. In Owasso Independent School Dist. No. I-011 v. Falvo, the Supreme Court ruled that peer-graded items were not education records and therefore were not protected under FERPA. Gonzaga University v. Doe concerned enforcement of FERPA with the Supreme Court acknowledging nondisclosure provisions, but arguing that the law does not create personal rights to enforce.[3][4][5][6]

    In response to the FERPA amendments and court rulings, the U.S. Department of Education proposed the Family Educational Rights and Privacy rule on March 24, 2008.

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    “ The Secretary amends our regulations implementing the Family Educational Rights and Privacy Act (FERPA), which is section 444 of the General Education Provisions Act. These amendments are needed to implement a provision of the USA Patriot Act and the Campus Sex Crimes Prevention Act, which added new exceptions permitting the disclosure of personally identifiable information from education records without consent. The amendments also implement two U.S. Supreme Court decisions interpreting FERPA, and make necessary changes identified as a result of the Department's experience administering FERPA and the current regulations.


    These changes clarify permissible disclosures to parents of eligible students and conditions that apply to disclosures in health and safety emergencies; clarify permissible disclosures of student identifiers as directory information; allow disclosures to contractors and other outside parties in connection with the outsourcing of institutional services and functions; revise the definitions of attendance, disclosure, education records, personally identifiable information, and other key terms; clarify permissible redisclosures by State and Federal officials; and update investigation and enforcement provisions.[1][7]

    		”

    Summary of provisions

    The following is a summary of the provisions from the final rule's entry in the Federal Register:[1]

    “ In the NPRM, we proposed regulations to implement section 507 of the USA Patriot Act (Pub. L. 107-56), enacted October 26, 2001, and the Campus Sex Crimes Prevention Act, section 1601(d) of the Victims of Trafficking and Violence Protection Act of 2000 (Pub. L. 106-386), enacted October 28, 2000. Other major changes proposed in the NPRM included the following:
    • Amending § 99.5 to clarify the conditions under which an educational agency or institution may disclose personally identifiable information from an eligible student's education records to a parent without the prior written consent of the eligible student;
    • Amending § 99.31(a)(1) to authorize the disclosure of education records without consent to contractors, consultants, volunteers, and other outside parties to whom an educational agency or institution has outsourced institutional services or functions;
    • Amending § 99.31(a)(1) to ensure that teachers and other school officials only gain access to education records in which they have legitimate educational interests;
    • Amending § 99.31(a)(2) to permit educational agencies and institutions to disclose education records, without consent, to another institution even after the student has enrolled or transferred so long as the disclosure is for purposes related to the student's enrollment or transfer;
    • Amending § 99.31(a)(6) to require that an educational agency or institution may disclose personally identifiable information under this section only if it enters into a written agreement with the organization specifying the purposes of the study and the use and destruction of the data;
    • Amending § 99.31 to include a new subsection to provide standards for the release of information from education records that has been de-identified;
    • Amending § 99.35 to permit State and local educational authorities and Federal officials listed in § 99.31(a)(3) to make further disclosures of personally identifiable information from education records on behalf of the educational agency or institution; and
    • Amending § 99.36 to remove the language requiring strict construction of this exception and add a provision stating that 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 individual, it may disclose the information to any person, including parents, whose knowledge of the information is necessary to protect the health or safety of the student or other individuals.[7]
    		 ”

    The following provisions were also included in the final rule's entry:[1]

    “ These final regulations contain several significant changes from the NPRM as follows:
    • Amending the definition of personally identifiable information in § 99.3 to provide a definition of biometric record;
    • Removing the proposed definition of State auditor in § 99.3 and provisions in § 99.35(a)(3) related to State auditors and audits;
    • Revising § 99.31(a)(6) to clarify the specific types of information that must be contained in the written agreement between an educational agency or institution and an organization conducting a study for the agency or institution;
    • Removing the statement from § 99.31(a)(16) that FERPA does not require or encourage agencies or institutions to collect or maintain information concerning registered sex offenders;
    • Requiring a State or local educational authority or Federal official or agency that rediscloses personally identifiable information from education records to record that disclosure if the educational agency or institution does not do so under § 99.32(b); and
    • Revising § 99.32(b) to require an educational agency or institution that makes a disclosure in a health or safety emergency to record information concerning the circumstances of the emergency.[7]
    		 ”

    Significant impact

    See also: Significant regulatory action

    The Office of Management and Budget (OMB) deemed this rule economically significant pursuant to Executive Order 12866. An agency rule can be deemed a significant rule if it has had or might have a large impact on the economy, environment, public health, or state or local governments. The term was defined by E.O. 12866, which was issued in 1993 by President Bill Clinton.[1]

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Federal Register, "Family Educational Rights and Privacy," December 9, 2008
    2. ↑ Federal Register, "Family Educational Rights and Privacy," January 6, 2009
    3. ↑ 3.0 3.1 3.2 Federal Register, "Family Educational Rights and Privacy," March 24, 2008
    4. ↑ 4.0 4.1 Electronic Privacy Information Center, "Family Educational Rights and Privacy Act (FERPA)," accessed February 9, 2023
    5. ↑ Oyez, "Owasso Independent School District No. I-011 v. Falvo," accessed February 9, 2023
    6. ↑ Oyez, "Gonzaga University v. Doe," accessed February 9, 2023
    7. ↑ 7.0 7.1 7.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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