WASHINGTON, D.C. — Turning aside the protests of media andFirst Amendment groups, the U.S. Department of Education has published a finalrule that would expand the definition of what constitutes a confidential”education record” under federal privacy standards.
Under the new DOE rule, schools and colleges would be directed to deny arequest under state open-records law for a document — even if all of theidentifying information about a student has been removed — if the schoolreasonably believes that the requester knows, or can figure out, the students towhom the document pertains.
The new rules were published in the Dec. 9, 2008, edition of the FederalRegister and are set to take effect Jan. 8, 2009, less than two weeks beforethe end of the Bush administration.
The rules explain how the DOE will interpret and apply the FamilyEducational Rights and Privacy Act (FERPA), also known as the Buckley Amendment.Congress enacted FERPA to penalize schools that fail to enact policies tosafeguard against disclosure of personally identifying “educationrecords” such as attendance records and transcripts. Schools that violateFERPA can lose federal education funding, although no school has been sopenalized in the 34-year history of the statute.
DOE is the agency that is charged with implementing FERPA. However, itsinterpretation of FERPA is not conclusive and can be overturned by a court ifthe agency’s rule conflicts with, or is unsupported by, an act ofCongress.
It is common practice for members of the public or media to ask for”redacted” public records — records from which the names,addresses and other identifying personal information have been removed –to find out statistical information about everything from discipline tograduation rates. The new rule will make it more difficult to obtain redactedpublic records.
DOE is making two related changes to FERPA that drew fire fromopen-government advocates. Under the new rule, an otherwise-public record willbe considered confidential even if it contains no names, Social Security numbersor other individual identifiers, if the record is “linked or linkable to aspecific student” so that a person could figure out the student’sidentity “with reasonable certainty,” or if the educationalinstitution reasonably believes that the requester already knows the identity ofthe student to whom the documents relates.
As published Dec. 9, the rule is broader than when it was circulated forpublic comment earlier this year. The initial draft said that redacted recordswould be confidential if a person’s identity could be determined by peoplein the community. But the final regulation says that a redacted record isconfidential if a person’s identity could be determined by people inthe school — so that, in DOE’s view, a record about an incidentnot well-known to the public but known to people within the school will becomeconfidential.
In its Federal Register posting, the DOE said that its rules wouldprevent a school from confirming that an unnamed student was disciplined forbringing a gun to campus: “For example, it might be well known amongstudents, teachers, administrators, parents, coaches, volunteers, or others atthe local high school that a student was caught bringing a gun to class lastmonth but generally unknown in the town where the school is located. In thesecircumstances, a school district may not disclose that a high school student wassuspended for bringing a gun to class last month, even though a reasonableperson in the community where the school is located would not be able toidentify the student, because a reasonable person in the high school would beable to identify the student.”
The Student Press Law Center, the Society of Professional Journalists andthe National Education Writers Association were among the groups questioning theneed for broadening FERPA confidentiality and cautioning that the statutealready is being widely abused by schools and colleges to conceal suchinformation as audit reports of college programs and travel records of athleticteams. The FERPA statute and rules have been amended several times to deal withinstances of over-compliance by educational institutions, to clarify that suchdocuments as student parking tickets or police arrest reports are notconfidential “education records.”
Rejecting these protests, the DOE stated in the Federal Registerpublication that “FERPA is not an open records statute or part of an openrecords system,” so DOE need not consider whether its interpretation ofFERPA contravenes the public’s interest in accountability of governmentagencies. DOE also said it would recognize no exception to confidentiality evenif the person to whom the document pertains has voluntarily revealed her ownidentity to the media: “The fact that a matter is of general publicinterest does not give an educational agency or institution permission torelease the same or related information from education records withoutconsent.”
The FERPA revisions also make a number of less-controversial changes toDOE’s interpretation of the statute, including clarifying that documentspertaining solely to a person’s activity as an alumnus are not
“education records” that must be kept confidential.
The Dec. 9 Federal Register posting is viewablehere.