F . Family Educational Rights and Privacy Act (FERPA)

Wright,  supra note 15 at 307.
The purpose of the Family Educational Rights and Privacy Act (FERPA) is to protect the privacy of students and parents.

20 U.S.C. § 1232g(a)(1)(A) (2002).
Parents have the right to inspect and review the educational records of their children, as do children over eighteen to review their own records, and procedures must be in place for them to do so within forty-five days or a reasonable period of time. 

20 U.S.C. § 1232g(a)(2).
They also have the right to challenge what is in the student’s record.

20 U.S.C. 1232g(a)(2).
A parent or eligible student may request amendment of an educational record if that person believes the records are inaccurate, misleading, or in violation of the student’s right of privacy.

20 U.S.C. § 1232g(a)(3) & (4).
“Educational records” are defined in FERPA as those records that are directly related to the student and are maintained by an educational agency, or by a party acting for such agency. The definition includes records, files, documents, and other material that contain information directly related to a student and are maintained by an educational agency or institution.

34 C.F.R. § 99.3 (2009).
Records include “any information recorded in any way, including but not limited to handwriting, print, computer media, video or audiotape, film, microfilm and microfiche.”

20 U.S.C. § 1232g(h).
It would encompass internet student record systems, automated phone calls, and emails from the school district computer systems relating to unexcused absences, grades below a C, and discipline reports. Appropriate information may be included in the education record  concerning disciplinary action taken against students for conduct that posed a significant risk to the safety or well-being of others.

Wright, supra  note 15 at 307.
 
Educational records do not include personal notes and memory aids used only by the person who made them.

Reference
They do not include information from the "law enforcement unit" of a school or school district

McNaught, supra note 75 at  20-21.
Educational records also do not include oral information based on personal knowledge, such as a teacher’s observations about classroom behavior.

Reference
Generally, schools must obtain a parent’s written permission to disclose a student’s school records.

34 C.F.R. § 99.3.
“Disclosure means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written or electronic means.”





However, there are some exceptions. Records may be released to school officials and teachers who have legitimate educational interests, officials of other schools or school systems in which the student intends to enroll, and state educational authorities.

20 U.S.C. 1232g(b)(1).
Records also may be released to the juvenile justice system, if they are needed to serve the juvenile effectively before adjudication.

20 U.S.C § 1232g(b)(1)(J)
FERPA provides an exception to the parental consent requirement for the release of student educational records and authorizes the release of education records to comply with a court order or subpoena.

34 C.F.R. § 99.31(a)(9)(i) (2009).
The educational agency may disclose identifiable information from an educational record of a student without the parental consent required by CFR § 99.30 if the disclosure is to comply with a judicial order or lawfully issued subpoena.

A Guide to FERPA supra note 87.
The agency or institution must make a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance so that the parent or eligible student may seek protective action.



National Council on Disability, supra note 89 at 57.
Therefore, a judge may order the release of these records to make decisions about a neglected or dependent child or youth’s education.

Reference
Records may also be released for an emergency, to protect the health and safety of the child.

McNaught, supra note 78 at 21.
Information, once released, may not be re-disclosed to anyone else, unless that disclosure also fits under a FERPA exception.

Rios v. Reed, 73 F.R.D 589 (D.C.N.Y. 1977).
It is better to obtain records while considered as the parent, because then the prohibition against re-disclosure does not apply. The Court ruled, in a FERPA context that, “when disclosure to a private party is directed by court order, it would seem sensible to require the disclosure order that the recipients of the student records avoid revealing the data to individuals unconnected with the litigation..”



Reference
42 U.S.C. § 675(5)(D). (2010).
Under the Adoption Assistance and Child Welfare Act (AACWA), agencies must keep educational records as part of their case plan. They must also share educational records with foster care providers at placement.

Id. at 10.
Colorado is one of the states with problems of these records not being in the case files or not given to foster parents.

Id.  at 45.
Best practices are that, at a minimum, all records necessary for school enrollment are kept in the child’s file, to avoid delays if the child must be enrolled in a new school.