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This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.

Revised 10/29/2010

Q. What is the process for disclosing a student's own education records to the student?
A. Review the student's files to identify information that the student is not entitled to receive and remove that information. Removal may require making a copy of the document and redacting information. Then provide the student with the records the student is entitled to receive as soon as practicable.

Q. What is the process for disclosing education records to others?
A. The process for disclosing education records to others is as follows:

• Determine if the requesting party may access the records and follow the appropriate procedure for providing the records depending on the basis for access.
• Review the file for information which the requester is not entitled to receive and remove that information from the file through separation or redaction, as appropriate (of course only redact information from copies).
• Allow access as soon as practicable.
• Disclose the education records only on the condition that the requester may not re-disclose the information to someone else without the written consent of the student.
• Update the record of disclosures if appropriate.

Q. What is the process for disclosing education records pursuant to a subpoena or court order?
A. The process for disclosing education records pursuant to a subpoena or court order is as follows:

• Review the subpoena or order to ensure it is legitimate and enforceable. The subpoena must be issued by a court or agency that has authority to issue an order or subpoena in Wisconsin. If you have concerns about the subpoena or order, contact the Office of General Counsel or Campus Legal Counsel.
• Gather the materials that specifically respond to the subpoena, review the materials and remove information that the requester is not entitled to receive.
• Notify the student of the subpoena unless the subpoena directs otherwise. You must give the student enough time to go to court to contest the subpoena prior to your release of information.
• Update the record of disclosures if appropriate.

Q. Does FERPA protect the education records of former students?
A. Yes. FERPA protects the education records of former students.

Q. Does FERPA protect information about former students collected after the students have graduated from the institution?
A. No. Information about former students (i.e., alumni records) collected after the students have graduated from the institution is not considered an education record, so it is not protected by FERPA.

Q. Does FERPA protect the education records of deceased students?
A. No. However, the person requesting the deceased student's records must provide documentary proof that the student is in fact deceased. Also, there may be other legal and policy implications relating to releasing the records of a deceased student. Please consult the Office of General Counsel or Campus Legal Counsel.

Q. What is a health or safety emergency?
A. Generally, a health or safety emergency occurs when an experienced university official determines that an individual’s health or safety is being compromised or may be compromised by the actions of a student. Disclosing records or record information under this exception should be done only when the official believes it necessary to prevent or mitigate risk. Examples include situations where a student has suffered a seizure and requires immediate medical attention, where a student is threatening suicide, or where a student has threatened immediate violence against another student or the institution.

Q. What should system employees do if the police arrive with an arrest warrant for a student?
A. If the police are seeking access to a student’s class schedule, they need a subpoena to obtain that record. However, one option is to call the student to the main office (or a more private office) and allow law enforcement to serve the warrant at that location. Of course if there is a safety issue (such as the student is wanted for a violent crime), the health and safety emergency exception of FERPA would allow you to inform law enforcement officials of the student's location.

Q. What is the time frame for responding to a request for education records?
A. The institution should respond to the request as soon as practicable.

Q. May a fee be charged for providing copies of education records?
A. A fee may be charged for copies, but not for employee time spent searching for and retrieving records.

Q. What should a faculty member do if a student asks for a reference to be provided to an employer or to another institution?
A. The faculty member will need a release from the student if the faculty member is going to give an oral or written reference on behalf of a student that includes education records or record information protected by FERPA. Of course, if the faculty member provides a written reference directly to the student, no release is required.

Q. What is a legitimate educational interest for those who have access to student education records?
A. There is no exact definition for this term, but generally those individuals who need to review an education record to fulfill their job responsibilities have a legitimate educational interest in reviewing the record. Those individuals usually must be employed by or act as an agent of the institution, or be under contract with the institution.

Q. Does FERPA prevent an institution from including appropriate information in a student's education records concerning disciplinary action against the student?
A. No. Additionally, if that conduct posed a significant risk to the student, other students, or members of the campus community, FERPA does not prevent the institution from sharing this information with persons at the institution, and at other institutions, who have a legitimate educational interest in the student's behavior.

Q. What is directory information for a student who has been at the college for more than one year?
A. FERPA allows an institution to disclose directory information (as it is defined when the request for information is made) about current students. However, the institution must give current students notice each time the institution wants to change what is designated as directory information to give each student the opportunity to object and to direct the institution not to release the newly designated information about that particular student.

Q. What is directory information for a student who has left the college?
A. FERPA allows an institution to disclose directory information (as it is defined when the request for the information is made) about former students without going through the notification process, unless that student decided to “opt out” at the time he or she was a student.

Q. What are desk drawer notes?
A. The records of instructional, supervisory, and administrative personnel, and ancillary educational personnel, which are in the sole possession of the maker and which are not revealed to any other person. Desk drawer notes are not considered education records, and students cannot access them under FERPA.

Q. What are campus law enforcement records?
A. Records that are created by a campus law enforcement unit for a law enforcement purpose and that are maintained by the unit.

Q. What about records relating to work study students?
A. Records relating to work study students are education records protected by FERPA.

Q. What about records relating to a student's disability and accommodations provided for that disability?
A. Records relating to students with disabilities are education records protected by FERPA. Disability records must be maintained separately from other education records because of the sensitive and private information contained in them. The best practice is to maintain student disability records in the institution's disability services office. Access to these records is on a need-to-know basis. Faculty will generally not need to know specific information regarding a student's disability. NOTE: Student medical records provided to an institution during the disability accommodation process are not education records, but have separate protections under state law.

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