“You can’t have that, that’s protected by FERPA” is one of the most common refrains we hear at SPLC. For a few months now, we’ve been trying to draw attention to the overly broad way that schools and colleges define the Family Educational Rights and Privacy Act when they’re trying to withhold a public record.
To do this, we asked students to request their own education records. In addition to being a privacy statute, FERPA is also a mandatory disclosure statute. If a record is protected by FERPA, students have a right to look at it and even challenge any errors they find in it. The disclosure part of the law doesn’t get a lot of attention, but giving students access to their own records was a big part of why Congress passed the law in the first place.
We gave students a form letter to fill out that asks for access to all of their education records:
I write to request access to and a copy of all documents defined as my “education records” under 34 CFR Sec. 99.3, including without limitation a complete copy of any files kept in my name in any and all university offices; any e-mails, notes, memoranda, video, audio, or other documentary material maintained by any school employee in which I am personally identifiable; and any and all phone, medical, or other records that relate to me.
We didn’t really know what to expect. Would schools point out to students that medical records aren’t actually education records protected by FERPA? Would they go search every professor’s office for any Post-It note with a student’s name on it? Would they read through emails to find if a student was referenced, even if not by name? Would they hand over all the parking tickets given to a student? Or would they admit that FERPA truly applies only to a much narrower set of documents, the kind the school actually maintains in a central file — class schedules, transcripts and the like?
Last week, we heard the results of one student’s “Break FERPA” request. Vikaas Shanker, a student journalist at the University of Kansas, said that he hasn’t run into too many issues where he or other student journalists at his school have been stymied by FERPA, but that he was curious to see what the university would say. Shanker, who was managing editor of The University Daily Kansan last semester, said he wanted to know ahead of time what the university considered FERPA protected in case a big news story broke involving a KU student and journalists needed access to relevant records.
“If we want to get certain records and the university says they are protected under FERPA, we want to know exactly what they mean by that,” he said. “A lot of colleges that are denying information are kind of just throwing out that five-letter word.”
The director of the school’s privacy office, Jane Rosenthal, wrote back to Shanker last week to tell him that many of the items he requested don’t meet the definition of an education record.
First, you had requested access to phone records that relate to you. We’re not aware of any such records; nor are we aware of how we would search for such records. …
Second, you requested access to your medical records. Medical records, however, are not considered education records under FERPA; rather they are “treatment” records and excluded from FERPA under 34 CFR 99.3. …
Importantly, your request for any document with your name on it is not supported by FERPA, and it is often unknowable. At times individual employees or instructors at KU may have a note with your name on it — or perhaps a copy of the University Daily Kansan bearing your name. The fact that your name appears on a note or article does not make it an education record under FERPA.
Rosenthal’s letter also debunks the idea that failure to provide access to these records could result in the loss of all federal funding for the university — a disaster scenario that schools cite when explaining why they won’t provide access to records.
FERPA does not punish a single violation with the loss of all federal education funding. Rather, the statute states that funding is not to be made available to education institutions with ‘a policy’ of denying the right to inspect or review education records.
Shanker said he wasn’t very surprised that the school took this narrow view of what an education record is.
“I was kind of expecting a response like that,” Shanker said. “Just looking at it from the university’s standpoint, I think that the intent of the Break FERPA letter worked because it made them sensitive to the fact of ‘Well what can we actually give students under FERPA?'”