Your Rights Under FERPA
Here’s what you need to know about campus police, security and administratoraccess to student school records and student arrest information.
In the aftermath of several high-profile campus security incidents that have occurred in the past decade, questions concerning access to student records have become a focal point for many university administrators, school security personnel and school police departments. These incidents have led campus officials to reconsider their practices and policies regarding access to student records and the circumstances when student records can be shared with others.
The Family Educational Rights and Privacy Act of 1974 (FERPA) provides the statutory framework that generally governs access to and disclosure of student records. Under FERPA, education records usually cannot be disclosed without a court order or consent of the student or parents of a minor student. FERPA’s scope is wide as “education records” are broadly defined as records directly related to a student and maintained by an educational agency. (34 C.F.R. § 99.3.) The law only applies to educational institutions that receive funds under programs administered by the Department of Education.
While FERPA may appear to prohibit the disclosure of pertinent student information, the statute actually provides campuses with some flexibility regarding the sharing of student records between a school or university and its police or security personnel. It is important for education campuses to develop disclosure plans that are compliant with FERPA while also providing the greatest protection for students, faculty and staff.
1. When can campus police or security have access to student records?
FERPA allows a school to disclose education records to “school officials” who have “legitimate educational interests” in the information. (34 C.F.R. § 99.31(a)(1)(i)(A).). The Department of Education has determined that the school has broad discretion to designate those school officials who have legitimate educational interests in accessing education records. For example, the “Model Notification of Rights under FERPA for Postsecondary Institutions,” promulgated by the Department of Education, provides that:
- A school official is a person employed by the [school or university] in an administrative, supervisory, academic or research, or support staff position (including law enforcement unit personnel and health staff).
- 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 responsibilities for the [school or university].
Schools or colleges that provide their campus police or security departments with access to student education records should expressly designate police or security personnel as “school officials” with “legitimate educational interests” in those records. Campus administrators must also keep in mind that the annual notification of FERPA rights must include the school’s criteria for determining who constitutes a “school official” and what constitutes a “legitimate educational interest.” Accordingly, educational institutions should carefully consider who to identify as school officials in order to provide school personnel and students with the greatest degree of security.
In the event that campus police or security personnel receive any education records, those records do not lose their protection under FERPA. Therefore, protocols should be implemented to ensure that education records are maintained confidentially and only disclosed in compliance with FERPA. It is generally advisable to maintain police records separately from education records.
2. When can campus administration or faculty have access to school police records?
If FERPA allows campus police and security to access student records, does it also allow school and college administrators and faculty to access campus police records? In fact it does: FERPA expressly does not apply to – and does not prohibit the disclosure of – records maintained by a school’s law enforcement unit. Like other terms in FERPA, which are defined broadly, “law enforcement unit” simply means the person, office or department authorized or designated to enforce laws or maintain the security and safety of the school.
While law enforcement records are accepted from FERPA’s reach, the exception only applies to records that (1) are created by a law enforcement unit, (2) are created for law enforcement purposes and (3) are actually maintained by the law enforcement unit. All these elements must be present in order for law enforcement records to be exempt from FERPA restrictions.
For example, records that are created by the law enforcement unit for law enforcement purposes but maintained outside of the law enforcement unit, are not exempt from FERPA’s coverage. Similarly, any records created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose (such as a disciplinary action conducted by the school) do not qualify as exempt records and would be subject to FERPA if they directly relate to a student.
Administration and police officials also need to be careful of the way records are maintained. If a school treats police records as student records, then those records would likely be subject to FERPA restrictions. However, a school official with a legitimate educational interest could still be given access to those records based on the exception discussed previously.
On the other hand, if a college or K-12 campus keeps law enforcement records and student records separately, information within the law enforcement records likely will not be subject to FERPA. In such a case, the information could be disclosed subject only to any applicable state or local laws that might restrict access to those records.
It is also worth noting that the federal Clery Act, applicable to colleges and universities who participate in federal financial aid programs, requires the collecting, reporting and annual dissemination of crime data to the campus community. Such disclosures are permitted under FERPA since they do not contain personally identifiable information.
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