General Counsel
FAQ - Student Records: Family Educational Rights and Privacy Act (FERPA)
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.
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.
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.
- 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 General Counsel's Office 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 graduated from the institution?
A. No. Information about former students (i.e., alumni
records) collected after the students 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.
Q. What is a health or safety emergency?
A. This is a limited exception. Therefore, institutions
should be very discriminating about what constitutes a health or
safety emergency. An institution should provide education records
under this exception only when necessary to protect the health or
safety of students or other persons. Examples include situations
where a student has suffered a seizure and requires immediate medical
attention, or where a student has threatened immediate violence against
another student or the institution.
Q. What should system employees do if the police come with
an arrest warrant for a student?
A. Unless student schedules are directory information,
you should not give the student's schedule to the officer. 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. However,
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 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 the institution, 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.
Q. What about tests and scoring keys?
A. These are not public information. Students may
see their individual tests unless it is determined that access would
compromise the objectivity, fairness, or integrity of the examination
process. The institution is not required to provide copies of a completed
examination or the answer key.
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 except a substitute. 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.
Q. Besides access, what other rights do students have regarding
their education records?
A. Students have a right to a hearing to challenge
the content of their records if they feel the records are inaccurate,
misleading, or otherwise in violation of the student's privacy rights.
A student may also insert a written explanation into his or her record.
However, students may not use this process to challenge a grade (except
for clerical errors). Students have the right