In February 2019, the U.S. Department of Education released new Family Educational Rights and Privacy Act (“FERPA”) guidance about schools’ and school districts’ responsibilities under FERPA relating to disclosures of student information to school resource officers, law enforcement units, and other stakeholders to explain and clarify how FERPA protects student privacy while ensuring the health and safety of all in the school community. See: https://studentprivacy.ed.gov/sites/default/files/resource_document/file/SRO_FAQs_2-5-19_0.pdf.
FERPA permits schools and districts to disclose education records (and the personally identifiable information (“PII”) contained in those records) without consent if the “school officials” have “legitimate educational interests” in the education records. Each school or school district must include in its annual notification what constitutes a “school official” and what constitutes a “legitimate educational interest.” Law enforcement who are employees of a school or district, would typically be considered a “school official.” Law enforcement that are off-duty police officers or school resource officers would typically be considered a “school official” if they fall into four specific categories. The categories include performing an institutional service or function for which the school or district would otherwise use employees, are under the “direct control” of the school or district with respect to the use and maintenance of the education records, are subject to FERPA’s use and re-disclosure requirements in 34 CFR § 99.33(a) allowing PII from education records to be used only for the purposes for which the disclosure was made (e.g., to promote school safety and the physical security of students) and limits the re-disclosure of PII from education records, and meets the criteria specified in the school or district’s annual notification of FERPA rights for being school officials with legitimate educational interests in the education records.
Additionally, FERPA health and safety emergency provision allows for a student’s education records (and the PII contained in the records) toPublic Publicbe disclosed, without appropriate consent, to appropriate parties in order to address a specific and articulable threat of a health or safety emergency. An appropriate party is defined under FERPA as a party whose knowledge of such information is necessary to protect the health or safety of students or other persons. The emergency must be significant and articulable, like an impending natural disaster, a terrorist attack, a campus threat, or the outbreak of an epidemic disease. The exception is limited to the period of the emergency and does not allow for a blanket release of PII from a student’s education records.
Under FERPA, “law enforcement unit” means any individual, office, department, division, or other component of a school or district, like police officers or security guards, that are authorized or designated by the school or district to (1) enforce any local, State, or federal law, or refer to appropriate authorities a matter for enforcement of any local, State, or federal law, against any individual or organization other than the agency or institution itself; or (2) maintain the physical security and safety of the agency or institution. There are several categories of records that an educational agency or institution may maintain that are not “education records” under FERPA, including records of a “law enforcement unit.” These law enforcement unit records are records that are (1) created by a law enforcement unit; (2) created for a law enforcement purpose; and (3) maintained by the law enforcement unit. Because of this, these records may be disclosed without the parent or eligible student’s consent to outside parties under FERPA.
What This Means for School Districts: The landscape of federal and state laws is ever evolving, especially in regards to school safety. School districts are advised to keep law enforcement unit records separately from education records. Additionally, having law enforcement unit officials who are “school officials” with “legitimate educational interests” will allow a school to disclose PII from a student’s educational record, without appropriate consent, to its law enforcement unit officials so that they may perform their professional duties and assist with school safety matters. For specific questions about your district’s record keeping policies, please contact your Husch Blackwell education attorney. For more specific information about school safety, please register for the free Husch Blackwell LLP School Safety Symposium on April 12, 2019 in Kansas City, MO. For additional information and registration information, please visit https://www.huschblackwell.com/schoolsafety2019.