Family Educational Rights and Privacy Act (FERPA)

ACCESS TO EDUCATIONAL RECORDS IN FLORIDA JUVENILE COURT PROCEEDINGS

In Florida, a student’s education records are protected by state and federal law and may only be disclosed in accordance with those laws.  The following summary is intended as a helpful resource for determining whether student records may be disclosed in the context of a juvenile court proceeding (including dependency or delinquency proceedings, or termination of parental rights).

What state laws govern the confidentiality of education records in Florida?

The following state laws directly govern the confidentiality of education records in Florida.  (Please note that education records may include records that are protected by other laws as well.)

Section 1002.22, Florida Statutes, indicates that the rights of students and parents with respect to education records shall be protected in accordance with the federal Family Education Rights and Privacy Act (FERPA) and its implementing regulations.  This section provides that an aggrieved person may bring an action in circuit court to enforce his or her rights.

Section 1002.221, Florida Statutes, makes education records confidential and exempt from public records, and prohibits the disclosure of education records except in conformity with FERPA.  This section also allows the Department of Juvenile Justice, schools, law enforcement authorities and other agencies to enter into interagency agreements that permit disclosure of education records solely for use in determining the appropriate services for juveniles.

Section 1002.222, Florida Statutes, prohibits schools from collecting information on a student’s, parent’s, or sibling’s political affiliation, voting history, religious affiliation, or biometric information, and limits the information that may be released as “directory information.”

Section 1002.225, Florida Statutes, makes public postsecondary educational records confidential and exempt from public records, and prohibits disclosure of such records, except as authorized by FERPA.

Section 1002.72, Florida Statutes, makes voluntary prekindergarten records confidential and exempt from public records, and limits the disclosure of those records to certain enumerated officials.

Section 1002.97, Florida Statutes, makes records of children in school readiness programs confidential and exempt from public records, and limits the disclosure of those records to certain enumerated officials.

What is FERPA?

The Family Educational Rights and Privacy Act (FERPA) is a federal law that affords parents the right to have access to their children’s education records and requires schools and other educational agencies that are subject to the Act (including all public schools and school districts in Florida) to maintain the confidentiality of education records.  Such educational agencies may only disclose a student’s education records with the parent’s (or eligible student’s) consent, unless a FERPA exception applies. The FERPA statute is found at 20 U.S.C. § 1232g, and the FERPA regulations are found at 34 CFR Part 99.

Where can I find general information on FERPA?

The U.S. Department of Education’s general FERPA information site is: http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

The U.S. Department of Education’s Frequently Asked Questions relating to FERPA for school officials may be found at:

http://familypolicy.ed.gov/faq-page/ferpa-school-officials

FERPA ISSUES IN JUVENILE COURT PROCEEDINGS

What is required for a parent or eligible student to consent to disclosure of education records?

Under 34 C.F.R. § 99.30, a parent or eligible student may consent to disclosure of a student’s education records by providing a signed and dated written consent.  The written consent must:

  • Specify the records that may be disclosed;
  • State the purpose of the disclosure; and
  • Identify the party or class of parties to whom the disclosure may be made.

A “signed and dated written consent” includes a record and signature in electronic form that identifies and authenticates a particular person as the source of the electronic consent and indicates the person’s approval.

Under 34 C.F.R. § 99.3, “Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.”

An “eligible student” is defined as “a student who has reached 18 years of age or is attending an institution of postsecondary education.”

Does FERPA permit the disclosure of education records to officials of Florida’s juvenile justice system?

FERPA permits schools to disclose education records to State and local officials or other authorities if the disclosure is allowed by a State law adopted after November 19, 1974, and if the disclosure concerns the juvenile justice system and its ability to serve, prior to adjudication, the student whose records are disclosed.   The officials and authorities to whom such information is disclosed must certify in writing to the school that the information will not be provided to any other party, except as provided for under State law, without written consent.  See 34 C.F.R. §§ 99.31(a)(5) and 99.38.

In Florida, section 1002.221, Florida Statutes, provides that an education agency may disclose education records without consent to parties to an interagency agreement among the Department of Juvenile Justice, the school, law enforcement authorities and other signatory agencies.  Information provided under such an agreement may only be used to determine the appropriate programs and services for juveniles and is inadmissible in any court proceeding before a dispositional hearing, unless consent is provided.

Does FERPA permit the disclosure of education records to school law enforcement units or school resource officers?

Generally speaking, separate law enforcement unit records are not “education records” and are not subject to FERPA; however, education records that are provided to a law enforcement unit official or school resource officer as a “school official” are subject to FERPA and may not be disclosed without consent.

Law enforcement unit records are those that are (1) created by a law enforcement unit; (2) created for a law enforcement purpose; and (3) maintained by the law enforcement unit.  Such records are not “education records” and, therefore, are not subject to FERPA.

A school law enforcement unit official or school resource officer may have access to education records if the individual is a “school official.”  If such an official receives education records in the course of his or her duties as a school official, the education records are subject to FERPA and may not be redisclosed without consent, unless a FERPA exception applies.  Because a school’s law enforcement unit may not redisclose personally identifiable information from a student’s education records, the U.S. Department of Education recommends that law enforcement units maintain law enforcement unit records separately from education records.  For more information, see http://familypolicy.ed.gov/faq-page?src=fpco.

Does FERPA permit the disclosure of education records to Florida Department of Children and Families (DCF) personnel without a parent or eligible student’s consent?

Pursuant to 20 U.S.C. § 1232g(b)(1)(L), if DCF is legally responsible for the care and protection of a student (i.e., if the courts have issued an order placing the child in shelter care pursuant to section 39.402, Florida Statutes, or if the child is adjudicated dependent pursuant to section 39.507, Florida Statutes), a school or school district may release education records to any agency caseworker or other DCF representative who has the right to access the student’s case plan, “provided that the education records, or the personally identifiable information contained in such records, of the student will not be disclosed by such agency or organization except to an individual or entity engaged in addressing the student’s education needs and authorized by such agency or organization to receive such disclosure….”

If DCF is not legally responsible for a student, disclosure may not be made to DCF or other social services officials without consent, unless another FERPA exception (such as a subpoena or emergency) applies.

May schools comply with a subpoena or court order for education records without the consent of the parent or eligible student?

Yes.  FERPA permits disclosure of education records without consent in compliance with a lawfully issued subpoena or judicial order.  See 34 C.F.R. § 99.31(a)(9)(i) and (ii).  However, a school must generally make a reasonable effort to notify the parent or eligible student of the subpoena or judicial order before complying with it in order to allow the parent or eligible student the opportunity to seek protective action, unless certain exceptions apply.   Exceptions to the requirement of prior notification apply to:  (1) a federal grand jury subpoena or other subpoena issued for a law enforcement purpose if the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; (2) an ex parte order obtained by the United States Attorney General (or designee not lower than Assistant Attorney General) concerning investigations or prosecutions of an act of terrorism or other specified offenses.  See 34 C.F.R. § 99.31(a)(9)(ii); or (3) when a parent is a party to a court proceeding involving child abuse and neglect or dependency matters, and the order is issued in the context of that proceeding, additional notice to the parent by the educational agency or institution is not required.  See 20 U.S.C. § 1232g(b)(2)(B).

May schools disclose education records in the event of a health or safety emergency?

Yes.  Pursuant to 34 C.F.R. §§ 99.31(a)(10) and 99.36, a school or school district may disclose education records to appropriate parties, without consent, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.  A school or school district who makes such a disclosure must record the disclosure pursuant to 34 C.F.R. § 99.32.

Please let us know if you have additional questions related to FERPA that are not addressed above.

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