The Family Educational Rights and Privacy Act (FERPA) protects students from the unauthorized disclosure of personally identifiable information contained in their educational records.  34 C.F.R. § 99.30.  Practically speaking, this means that in most instances, a school will need to have consent from a parent, legal guardian, or the student (if over age 18 or attending a postsecondary institution) before providing information from a student’s records.  However, FERPA contains several exceptions that allow a school to disclose information from a student’s records without consent.  One of those exceptions is designed to allow school administrators to make otherwise prohibited disclosures from a student’s educational records if doing so is necessary to protect the health or safety of that student or other individuals. 34 C.F.R. § 99.31(a)(10).

Disclosure is only permissible where it occurs because of an actual, imminent, or impending emergency. In fact, before disclosure, school personnel must determine that there is an “articulable and significant threat.”  34 C.F.R. § 99.36.  In other words, before deciding to disclose FERPA-protected information under this exception, a school official should be able to imagine later explaining, based on all of the information that he or she has at the moment, why it was necessary to disclose the information to protect the student or others from a threat.  Disclosure can be made to law enforcement personnel, medical personnel, parents (even where the student is over 18), and public health officials.  Only information that is related to protecting the student or others should be disclosed during an emergency.

FERPA only protects personally identifiable information derived from a student’s records.  Information obtained through personal knowledge or observation is NOT a protected educational record.  Therefore, if school staff witness or know, independent of a student’s records, something that would be helpful during an emergency, the staff may disclose information without worrying about whether the health and safety emergency exception to FERPA applies.  So, for instance, if a teacher overhears a student make a threat against a person or the school, that teacher may report that information to law enforcement without fearing that he or she is violating FERPA.

In an emergency, there will be little time to decide whether a disclosure of otherwise protected information is appropriate.  Therefore, training school personnel about when the health and safety emergency exception applies, providing written procedures for dealing with emergencies, and creating a threat assessment program, can help protect a school from complaints of a FERPA violation.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Cathleen M. Dooley at  480.461.5331, log on to udallshumway.com,  or contact an attorney in your area.