As attorneys, we know the importance of documentation. When it comes to matters involving children, it is common for educational records to be utilized. It is important to understand the application of Oklahoma law1 as well as federal law, specifically FERPA, when it comes to which records are deemed as educational records versus directory information. Some records are available to any patron while others require parental consent,2 and some are only accessible via court order.

This article will delve into each area and provide you with guidance on which records might be more helpful than others in reference to cases involving children.

WHAT IS FERPA?
The Family Educational Rights and Privacy Act (FERPA)3 was enacted in 1974 and governs access to confidential information of public educational agencies and institutions that receive U.S. Department of Education funding. Certain private schools may not enjoy the protection of FERPA because no federal funding is received. However, policy may still preclude disclosure to anyone other than the parents and legal guardians.

In layman’s terms, FERPA protects against widespread disclosure of public school students’ attendance records, videos, report cards, test scores and more. Outside of public school employees who need to know student information for educational purposes, only the parents, legal guardians and eligible students4 have access to review, request records be amended and control disclosure to other persons.

FERPA can only be violated by an agent or employee of the public school district. For example, if a school district employee records a student football game and a patron records the same game, the public school could not release the video through a directory information request, but the patron could share it with anyone and everyone.

WHAT RECORDS ARE PROTECTED UNDER FERPA?
FERPA protects and makes confidential all “educational” records (or personally identifiable information contained therein). Educational records are not just confined to paper documents as they also encompass videos, audio recordings, computer files, photos and any other type of media. The public school is prohibited from releasing these records unless permitted within FERPA or by consent of the parents, legal guardians or eligible students. A public school cannot itself waive any student’s FERPA protection as it is not the school that is protected, rather it is the student’s privacy in mind. In some cases, the school could redact confidential information in order to release certain documents, but this is a slippery slope.

FERPA does not protect all records created and/or maintained by the public school, just those deemed educational in nature. Noneducational student records are considered “directory information.”

WHAT IS DIRECTORY INFORMATION?
FERPA allows disclosure to any third party of student “directory information,” which is information generally not deemed to be harmful or an invasion of a student’s privacy if released. Each school district must adopt and maintain a policy5 determining what is included in directory information; this policy varies district by district.

Typically, directory information includes student name, address, parents’ or legal guardians’ names, activities and sports, and could include more, such as date and place of birth, weight, honors and more, dependent upon the school district’s policy. In a practical sense, it is directory information that allows for a student yearbook with pictures of teams, groups and honors. Anyone can request and obtain directory information as described in school district policy for students without notification or further authorization of the parents or legal guardians.

However, the school district must annually notify the parents, legal guardians and eligible students of their right to opt out of disclosure of directory information, which would deny access to anyone who requested it, other than the parents or legal guardians themselves. This would also preclude the use of names and photos on the school’s website, Facebook page and yearbook, etc.

It is important to know that our state law protects directory information of students in the custody of state child protective services6 or foster care. Student names, photos and activities are to be kept confidential for the protection of the students.

FERPA EXCEPTIONS
FERPA permits disclosure of educational records without parental consent through certain exceptions,7 including but not limited to:

• School officials with legitimate educational interest,
• Other schools to which a student is transferring,
• Specified officials for audit or evaluation purposes,
• Appropriate parties in connection with financial aid to a student,
• Organizations conducting certain studies for or on behalf of the school,
• Accrediting organizations,
• To comply with a judicial order or lawfully issued subpoena,
• Appropriate officials in cases of health and safety emergencies, and
• State and local authorities, within a juvenile justice system, pursuant to specific state law.

OBTAINING RECORDS FROM A PUBLIC SCHOOL
An attorney seeking student records would best start by reviewing the school district’s policy on directory information. Again, directory information would provide general student information that may or may not be helpful to the attorney’s case. It is best to follow the process provided by administration to obtain records, and it might be helpful to review the policy and procedures on open records requests as well. If more information is sought, such as student attendance and tardy records, student grades, individualized education plan documents or teacher and administration records about student behavior, then the attorney will want to determine next steps in accordance with FERPA.

As only the parents, legal guardians and eligible students can consent to disclosure outside the public school, an attorney for any of those parties should first seek written consent for such disclosure to provide to the school district. It is important to know that both parents and all legal guardians have access to student records and can determine who else could have access. More specifically, each parent and/or legal guardian or
eligible student can authorize disclosure of FERPA-protected information to other parties not otherwise authorized. An eligible student could even prohibit disclosure to her parents should she so decide. It does not matter which parent has custody, so long as a parent maintains parental rights, access to records is absolute. Conversely, a custodial parent cannot prohibit disclosure to a noncustodial parent or authorized legal guardian.

A written authorization of disclosure from a parent, legal guardian or eligible student would be more successful than a subpoena. Absent this, a court order would also provide access.

ABOUT THE AUTHOR
Jessica Sherrill is director of unemployment for the Oklahoma State School Boards Association. She is a member and past president of the Oklahoma School Board Attorneys Association. She is a graduate of the OCU School of Law. She is currently Rotary District 5750 governor and member of OKC Midtown Rotary.

1. 70 O.S. §24-101.4; 51 O.S. §24A.16.
2. Parental consent is replaced with legal guardian consent, when applicable.
3. 20 U.S.C. §1232g.
4. Eligible students are those who have reached the age of 18 or are attending school beyond high school level.
5. 51 O.S. §24A.16.
6. Oklahoma Department of Human Services (aka OKDHS).
7. 34 CFR §99.31.