NSBA: FERPA privacy regulations finalized

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The Department of Education (ED) has issued final regulations implementing provisions of the final Family Educational Rights and Privacy Act (FERPA). For background on the proposed regulations and NSBA comments to them, see the second link below. The final regulations clarify permissible disclosures to parents of eligible students and conditions that apply to disclosures in health and safety emergencies; clarify permissible disclosures of student identifiers as directory information; allow disclosures to contractors and other outside parties in connection with the outsourcing of institutional services and functions; revise the definitions of attendance, disclosure, education records, personally identifiable information, and other key terms; clarify permissible redisclosures by state and federal officials; and update investigation and enforcement provisions. Some amendments were adopted in response to concerns that confusion over FERPA’s requirements may have obstructed disclosures that could help prevent tragedies like the shootings at Virginia Tech. Others amendments reflect two U.S. Supreme Court decisions interpreting FERPA and implement a provision of the USA PATRIOT Act and the Campus Sex Crimes Prevention Act, which added new exceptions permitting the disclosure of personally identifiable information from education records without consent. The significant changes from the new regulations as initially proposed include (1) the removal of language relating to state auditors; (2) the addition of a requirement that an institution that makes a disclosure under FERPA’s health or safety emergency exception record the circumstances of the emergency; and (3) the addition of a requirement that an institution record a disclosure not made under that exception. The ED notice addresses comments submitted on the proposed regulations at length.

The regulations are effective January 8, 2009.

73 Fed. Reg. 74,806 (Dec. 9, 2008)

Final regulations
NSBA School Law pages on FERPA regulations