You’re a journalist needing access to emails between officials in a school district that might shed light on a story of public importance. One problem: The emails mention a student in an identifiable way, and that means the school’s lawyer will classify them all as “confidential education records” and refuse to produce them.
Can anything be done? Increasingly, the answer is “yes.”
A recent Pennsylvania court ruling adds to the growing national consensus that internal agency correspondence can’t be categorized as an “education record” under the Family Educational Rights and Privacy Act unless it is centrally maintained in a file corresponding to a specific student.
This interpretation – that FERPA means what it says, and that records aren’t covered by FERPA privacy unless they are “maintained” in a student’s central file – comports both with common sense and with U.S. Supreme Court precedent. Yet school and college lawyers remain largely in denial, insisting that any record even tangentially referencing a student can be withheld from disclosure – a position that enables educational institutions to conceal scandal and evade oversight.
That misapplication of FERPA got a bit easier to challenge with a U.S. district court’s March 31 decision (E.D. v. Colonial School District) in a dispute over the adequacy of special-ed services provided by a Pennsylvania elementary school.
The parents of a first-grader sued Pennsylvania’s Colonial School District claiming that their daughter was refused federally required services to accommodate her speech and language impairments. As part of their claim, the family also alleged that the district violated FERPA by refusing to turn over education records corresponding to their child – a draft report of a school psychologist’s evaluation, and emails between school administrators discussing their plans to retain the child rather than advancing her to second grade.
FERPA is both a privacy statute and an access statute, and when a document is classified as an “education record,” that means a student’s parents have an absolute right to inspect and correct it, and that the school must enforce policies to keep the record from being publicly released.
Contrary to what schools have been arguing in court for decades, attorneys for the Colonial School District argued that FERPA is in fact a narrow statute applying only to centrally maintained records held with some degree of permanence, which is exactly how the U.S. Supreme Court defined the scope of FERPA in its 2002 ruling, Owasso Independent School District v. Falvo.
U.S. District Judge R. Barclay Surrick agreed with the school district that the requested documents did not qualify as “education records,” meaning the school had no duty under FERPA to produce them.
As to the emails, Surrick found that email messages — even when they refer to a specific student — do not generally meet the statutory definition to be covered by FERPA, because emails are not “maintained” by the institution and may be deleted by the recipients at any time.
Unless Defendant kept copies of e-mails related to E.D. as part of its record filing system with the intention of maintaining them, we cannot reach the conclusion that every e-mail which mentions E.D. is a bona fide education record within the statutory definition. These e-mails appear to be casual discussions, not records maintained by Defendant.
Likewise, Surrick found that the psychologist’s preliminary report did not qualify as an “education record” because it was retained by the psychologist and not filed away for the school’s use in making decisions about the student.
The draft report does not fit within the statutory definition of education records. There is no reason to believe that the draft report is in fact “maintained” by Defendant or any of its employees in any meaningful way. It was not circulated among staff, nor were any decisions in regard to E.D.’s educational accommodations made in reliance on the draft report.
This ruling is true to the purpose and intent of FERPA, which was always meant to be primarily about protecting parents’ rights to see the documents on which schools rely in making decisions about their children, and to correct any errors in those documents. The contemporary notion of FERPA as an all-encompassing secrecy blanket is a fiction that exists in the minds of school attorneys and, regrettably, in the rulings of some lackadaisical judges who’ve deferred to schools’ wishful thinking.
Surrick’s ruling echoed, and relied on, a California judge’s similar 2009 decision (S.A. v. Tulare County Office of Education), which rejected a family’s contention that all emails mentioning their child were subject to parental access as FERPA education records.
To the contrary, the judge ruled in the Tulare County case, only emails that are actually filed with a student’s permanent record are covered by FERPA:
Emails, like assignments passed through the hands of students, have a fleeting nature. An email may be sent, received, read and deleted within moments. As such, [plaintiff’s] assertion – that all emails that identify [students], whether in individual inboxes or the retrievable electronic database, are maintained ‘in the same way the registrar maintains a student’s folder in a permanent file’ – is ‘fanciful.’ Like individual assignments that are handled by many student graders, emails may appear in the inboxes of many individuals at the educational institution. FERPA does not contemplate that education records are maintained in numerous places.
The takeaway for journalists is never to accept a claim of FERPA secrecy at face value, because the statute applies to a limited range of records, almost none of which a journalist would ever legitimately need or ask for (grades, transcripts, standardized test scores and the like). In particular, emails exchanged by government officials should never be withheld on FERPA grounds unless the institution is being asked to produce them from a student’s central file, which rarely if ever will be the case.
Confused about your right of access under FERPA? Consult the SPLC’s widely used FERPA White Paper, and if you’re still getting the runaround, submit your access problem to the SPLC’s award-winning “FERPA Fact” blog for our assessment.