Part I: Introduction

Posted by Claire E. Parsons

In this day and age, Americans are accustomed to the notion that government records — with few exceptions — are available for public inspection upon request.  The Freedom of Information Act, 5 USC 552, et seq., opens records from most federal agencies and, here in Kentucky, the Open Records Act, KRS 61.870, et seq., makes many records available from local and state government entities.  For this reason, you may be surprised or even alarmed to find out that a good chunk of the records maintained by public school districts, which are local government entities, are not so readily available.

The reason for this is FERPA.  If your first response is, “what is FERPA?” you aren’t alone.  This acronym is shorthand for a brief, yet complex federal statute: the Federal Educational Rights and Privacy Act, 20 USC 1232g; see also 34 CFR Part 99.  As the title suggests, FERPA is not intended for the nefarious purpose of hiding educational records from public view, but instead to protect student’s legitimate privacy concerns.  But because FERPA imposes fairly rigorous procedural requirements on the disclosure of educational records, it is worthwhile for school administrators, local government agencies that work with schools, and the public at large to be aware of it.

Before delving into the details, we need to first make it clear what FERPA is and what FERPA is not.  At its most basic level, FERPA is a federal statute which both gives and takes away.  FERPA gives students and their parents the right to review their own or their child’s educational records and some control over the content in those records.  20 U.S.C. 1232g(a).  By the same token, FERPA also takes away the right of the general public to access student educational record which contain personally identifiable information, unless certain exceptions apply.  20 U.S.C. 1232g(b).

But it would be inaccurate to think of FERPA as an “open records act” for school districts.  It is not.  In fact, many records maintained by public educational agencies or school districts are probably not even subject to FERPA.  This is because FERPA applies only to “educational records” which contain the “personally identifiable information” of a student.  20 U.S.C. 1232g(a)(4)(A).  In short, FERPA won’t apply to a school district’s or educational agency’s general records; those types of records are likely going to be subject to ordinary open records laws.  Instead, FERPA protections only apply to individual student records.

So what does this mean?  It means that a typical open records request to a school district likely won’t be enough if you want to access a student’s educational records.  That is, unless you are the student or the student’s parent or unless there is a qualifying exemption.  In the following posts, we’ll outline the details of FERPA: (1) the rights of parents and students; (2) how the statute affects school districts; and (3) what third parties have to do to get records.  Stay tuned for Part 1: The Rights of Parents and Student under FERPA.