Family Education Rights & Privacy Act

The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.

Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.

Additional Information
Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-8520
(800) USA-LEARN ((800) 872-5327) (voice) or TDD: Federal Relay Service

FAQs
An eligible student that opted out of directory information has left the school. Now that the student is no longer in attendance, may the school disclose that students directory information?
No, a school is required to honor the eligible student’s request to opt out of the disclosure of directory information made while the student was in attendance, unless the student rescinds the opt out request.

Are educational agencies and institutions required to notify parents and eligible students of their rights under FERPA?
Yes. Educational agencies and institutions must annually notify parents and eligible students of their rights under FERPA. Specifically, schools must notify parents and eligible students of the right: to inspect and review education records and the procedures to do so; to seek amendment of records the parent or eligible student believes are inaccurate and the procedures to so do; to consent to disclosures of education records, except to the extent that FERPA authorizes disclosure without consent; and to file a complaint with SPPO concerning potential violations. Postsecondary institutions are only required to notify eligible students of their rights under FERPA.34 CFR § 99.7

Are law enforcement records considered education records?
“Law enforcement unit records” (i.e., records created by the law enforcement unit, created for a law enforcement purpose, and maintained by the law enforcement unit) are not “education records” subject to the privacy protections of FERPA. As such, the law enforcement unit may refuse to provide a parent or eligible student with an opportunity to inspect and review law enforcement unit records, and it may disclose law enforcement unit records to third parties without the parent or eligible student’s prior written consent. However, education records, or personally identifiable information from education records, which the school shares with the law enforcement unit, do not lose their protected status as education records just because they are shared with the law enforcement unit.

Are law enforcement records protected under FERPA?
“Law enforcement unit records” (i.e., records created by a law enforcement unit at the educational agency or institution, created for a law enforcement purpose, and maintained by the law enforcement unit) are not “education records” subject to the privacy protections of FERPA. As such, the law enforcement unit may refuse to provide a parent or eligible student with an opportunity to inspect and review law enforcement unit records, and it may disclose law enforcement unit records to third parties without the parent’s or eligible student’s prior written consent.
FERPA General Guidance for Parents

Are schools required to record the disclosure of personally identifiable information (PII) from students’ education records whenever they make disclosures?
Subject to certain exceptions addressed below, schools must maintain a record of each request for access to, and each disclosure of PII from, the education records of each student, as well as the names of state and local educational authorities and federal officials and agencies listed in § 99.31(a)(3) that may make further disclosures of PII from students’ education records without consent. The school must maintain this record with the education records of the student as long as the education records are maintained.

Schools do not have to record disclosures of PII from education records that were made to: 1) the parent or eligible student; 2) a school official under § 99.31(a)(1); 3) a party with written consent from the parent or eligible student; 4) a party seeking directory information; or 5) a party seeking or receiving records in accordance with the provisions in FERPA related to disclosures pursuant to certain types of subpoenas or court orders as set forth in § 99.31(a)(9)(ii)(A)-(C). See § 99.32(d).

Can stepparents, grandparents, and other caregivers be considered parents under FERPA?
In some cases, a stepparent may be considered a “parent” under FERPA if the stepparent is present on a day-to-day basis with the natural parent and child and the other parent is absent from that home. Conversely, a stepparent who is not present on a day-to-day basis in the home of the child does not have rights under FERPA with respect to the child’s education records. A grandparent or other caregiver who is acting in the absence of the parent(s) may also be considered a “parent” under FERPA.

Source: 34 CFR § 99.3

Can the same recorded image be the education record of more than one student under FERPA?
Yes. For example, a surveillance video that shows two students fighting on a school bus that the school uses and maintains to discipline the two students, would be “directly related to” and, therefore, the education record of both students.

Do students under the age of 18, not in college, and not in the physical custody of a parent or guardian have rights under FERPA?
FERPA does not specifically afford minors who are separated from their parents the rights that are afforded to parents and eligible students under the law. However, schools may use their judgment in determining whether an unaccompanied minor is responsible enough to exercise certain privileges, such as inspecting and reviewing education records and providing consent for disclosure. 34 CFR § 99.5(b).

Does a school have to explain or interpret education records when requested by a parent or eligible student?
FERPA requires that an educational agency or institution respond to reasonable requests for explanations and interpretations of education records. 34 CFR § 99.10(c).

Does a spouse of an eligible student have rights with respect to that student’s education records?
No, spouses of eligible students have no rights under FERPA. Before an education institution discloses information from a student’s education records to his or her spouse, the student would have to provide written consent.

Does FERPA permit educational agencies and institutions turn over videos to the police upon request or following an incident that may warrant police involvement?
If the law enforcement unit of an educational agency or institution creates and maintains videos for a law enforcement purpose, then the videos would not be education records and FERPA would not prohibit the law enforcement unit of an educational agency or institution from disclosing the videos to the police. If the videos are education records, however, educational agencies and institutions may not turn over videos to the police upon request without having first either obtained the written consent of the parent or eligible student or determined that the conditions of an exception to the general requirement of consent have been met, such as if the disclosure is made in connection with a health or safety emergency (20 U.S.C. 1232g(b)(1)(I) and 34 CFR §§ 99.31(a)(10) and 99.36) or the law enforcement officer has presented the educational agency or institution with a judicial order or a lawfully issued subpoena (20 U.S.C. 1232g(b)(1)(J) and (b)(2) and 34 CFR § 99.31(a)(9)).

Does FERPA permit legal representatives of parents or eligible students to inspect and review videos with the parent or eligible student?
Yes. FERPA permits legal representatives of a parent or an eligible student to inspect and review videos with the parent or eligible student. While FERPA does not require educational agencies and institutions to allow parents or eligible students to bring their attorney or other legal representative with them when they exercise their right to inspect and review the student’s education records, nothing in FERPA prevents educational agencies and institutions from allowing parents or eligible students to bring their attorney or other legal representative with them when they exercise their right to inspect and review the student’s education records under FERPA.

Does FERPA protect the education records of students that are deceased?
Consistent with our analysis of FERPA and common law principles, we interpret the FERPA rights of eligible students to lapse or expire upon the death of the student. Therefore, FERPA would not protect the education records of a deceased eligible student (a student 18 or older or in college at any age) and an educational institution may disclose such records at its discretion or consistent with State law. However, at the elementary/secondary level, FERPA rights do not lapse or expire upon the death of a non-eligible student because FERPA provides specifically that the rights it affords rest with the parents of students until that student reaches 18 years of age or attends an institution of postsecondary education. Once the parents are deceased, the records are no longer protected by FERPA.

How does a school know when a health or safety emergency exists so that a disclosure may be made under this exception to consent?
An educational agency or institution must make this determination on a case-by-case basis, taking into account the totality of the circumstances pertaining to a threat to the health or safety of a student or others. If the school determines that there is an articulable and significant threat to the health or safety of a student or other individuals and that a third party needs personally identifiable information (PII) from education records to protect the health or safety of the student or other individuals, it may disclose that information to appropriate parties without consent.

How long does an educational agency or institution have to comply with a request to view records?
FERPA requires that educational agencies and institutions comply with a request by a parent or eligible student for access to education records within a reasonable period of time, but not more than 45 days after receipt of a request. Some States have laws that may require that parents and eligible students be granted access in a shorter time period. 34 CFR § 99.10(b).

How may a parent or eligible student file a FERPA complaint with the Department of Education?
A parent or eligible student may file a written complaint with the Family Policy Compliance Office regarding an alleged violation under of FERPA. The complaint must be timely (submitted to the office within 180 days of the date that the complainant knew or reasonably knew of the violation) and state clearly and succinctly specific allegations of fact giving reasonable cause to believe that the school has violated FERPA.

If a parent opts out of the public, non-consensual disclosure of directory information (or any subset of such information), must the three data elements be released to military recruiters upon their request?
If a parent opts out of providing directory information to third parties, the opt-out relating to name, address, or telephone number applies to requests from military recruiters as well. For example, if the opt-out states that telephone numbers will not be disclosed to the public, schools may not disclose telephone numbers to military recruiters.

If a student under 18 is enrolled in both high school and a local college, do parents have the right to inspect and review his or her education records?
If a student is attending a postsecondary institution - at any age - the rights under FERPA have transferred to the student. However, in a situation where a student is enrolled in both a high school and a postsecondary institution, the two schools may exchange information on that student. If the student is under 18, the parents still retain the rights under FERPA at the high school and may inspect and review any records sent by the postsecondary institution to the high school. Additionally, the postsecondary institution may disclose personally identifiable information from the student’s education records to the parents, without the consent of the eligible student, if the student is a dependent for tax purposes under the IRS rules.

If a video is an education record for multiple students, can a parent of one of the students or the eligible student view the video?
When a video is an education record of multiple students, in general, FERPA requires the educational agency or institution to allow, upon request, an individual parent of a student (or the student if the student is an eligible student) to whom the video directly relates to inspect and review the video. FERPA generally does not require the educational agency or institution to release copies of the video to the parent or eligible student.

In providing access to the video, the educational agency or institution must provide the parent of the student (or the student if the student is an eligible student) with the opportunity to inspect and review the video. If the educational agency or institution can reasonably redact or segregate out the portions of the video directly related to other students, without destroying the meaning of the record, then the educational agency or institution would be required to do so prior to providing the parent or eligible student with access. On the other hand, if redaction or segregation of the video cannot reasonably be accomplished, or if doing so would destroy the meaning of the record, then the parents of each student to whom the video directly relates (or the students themselves if they are eligible students) would have a right under FERPA to access the entire record even though it also directly relates to other students.

For a fuller legal analysis and explanation of this issue, see the 2017 Letter to Wachter.

If a video is an education record for multiple students, can the parent of one of the students (or the eligible student) receive a copy of the video?
While we do not advise on an educational agency’s or institution’s obligations under any state open records laws that may apply, we note that FERPA does not generally require an educational agency or institution to provide copies of education records to parents and eligible students[1]. That said, it would not violate FERPA for an educational agency or institution to non-consensually disclose to an eligible student or to his or her parents copies of education records that the eligible student or his or her parents otherwise would have the right to inspect and review under FERPA.

For a fuller legal analysis and explanation of this issue, see the 2017 Letter to Wachter.

[1] If circumstances effectively prevent the parent or eligible student from otherwise exercising their right to inspect and review the student’s education records (e.g., if the parent lives outside of commuting distance to the school), then the educational agency or institution would be required to either provide a copy of the records or to make other arrangements for the parent or eligible student to inspect and review the records. 34 CFR § 99.10(d)

Can educational agencies and institutions charge parents or eligible students for the costs of the redaction or segregation?
No. FERPA provides parents and eligible students with the right to inspect and review the student’s education records, and nothing in the FERPA statute or regulations permits educational agencies and institutions to charge parents or eligible students for fees or costs associated with exercising that right.

If a school elects to provide a parent or eligible student with a copy of the education records, then the FERPA regulations (34 CFR § 99.11(a)) generally permit (with the exception noted below) the school to charge for the costs required to make the copy. FERPA regulations (34 CFR § 99.11(b)) also provide that the school may not charge a parent or eligible student for the costs to search for or retrieve the education records. We view the costs, if any, to the school of redacting, or segregating, education records of multiple students as being like the costs of search and retrieval that may not be charged to parents or eligible students, rather than like the costs for copies that generally may be charged to parents and eligible students. As noted above, if an educational agency or institution can reasonably redact or segregate out portions of an education record that is directly related to other students, without destroying the meaning of the record, then the educational agency or institution must do so and therefore cannot charge parents or eligible students for the costs associated with exercising their right to inspect and review such education records.

In contrast, parents and eligible students generally may be charged for the costs of making copies of education records precisely because FERPA generally does not require the school to provide them with such copies. Thus, where the redaction or segregation of education records of multiple students can be reasonably accomplished without destroying the meaning of the education records, nothing in FERPA permits educational agencies or institutions to charge parents or eligible students for the costs of making the required redactions or segregation. Please note that the FERPA regulations (34 CFR § 99.11(a)) similarly provide that if a fee for copies effectively prevents a parent or an eligible student from exercising the right to inspect and review his or her education records, an educational agency or institution would be required to provide copies without payment. Such cases would be limited to a parent or an eligible student providing evidence of the inability to pay for the copies due to financial hardship.

In the case of a divorce, do both parents have rights under FERPA?
Generally, yes. Unless a school is provided with evidence that there is a court order, state law, or other legally binding document relating to such matters as divorce, separation, or custody that specifically provides to the contrary, FERPA gives custodial and noncustodial parents alike certain rights with respect to their children’s education records. A school may ask for legal certification denoting parenthood, such as a birth certificate or court order, from the parent requesting access.

Source: 34 CFR § 99.4

May a parent or eligible student have an attorney at an amendment hearing?
Yes, the parent or eligible student may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney.

May a postsecondary institution disclose information about a disciplinary proceeding to the victim of a crime of violence or a non-forcible sex offense?
Yes, a postsecondary institution may disclose only the final results of the disciplinary proceeding to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense. The institution may disclose to the victim the final results of the disciplinary proceeding regardless of whether the institution concluded a violation was committed.

May a social security number or other student identification number be listed as directory information?
A school may not designate a student’s social security number as directory information. However, directory information may include a student’s user ID or other unique identifier used by the student to access or communicate in electronic systems, but only if the electronic identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the student’s identity, such as a personal identification number (PIN), password, or other factor known or possessed only by the student or authorized user. 34 CFR § 99.3

May an educational agency or institution disclose directory information without prior consent?
Education records that have been appropriately designated as "directory information" by the educational agency or institution may be disclosed without prior consent. See34 CFR §§ 99.31(a)(11) and 99.37. FERPA defines directory information as information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed. 34 CFR § 99.3.

FERPA provides that a school may disclose directory information if it has given public notice of the types of information which it has designated as "directory information," the parent or eligible student’s right to restrict the disclosure of such information, and the period of time within which a parent or eligible student has to notify the school in writing that he or she does not want any or all of those types of information designated as "directory information." 34 CFR § 99.37(a). A school is not required to inform former students or the parents of former students regarding directory information or to honor their request that directory information not be disclosed without consent. 34 CFR § 99.37(b). However, if a parent or eligible student, within the specified time period during the student's last opportunity as a student in attendance, requested that directory information not be disclosed, the school must honor that request until otherwise notified.

May an educational agency or institution disclose information over the phone?
While FERPA does not specifically prohibit a school from disclosing personally identifiable information from a student’s education records over the telephone, it does require that the school use reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom the school discloses personally identifiable information from education records. 34 CFR § 99.31(c).

May an educational agency or institution disclose personally identifiable information from students education records for the purpose of a specified audit, evaluation, or for compliance and enforcement purposes under FERPA?
FERPA permits schools to disclose PII from students’ education records, without consent, to authorized representatives of state and local educational authorities, the Secretary of Education, the Comptroller General of the United States, and the Attorney General of the United States for specified purposes. Disclosures may be made under this exception as necessary in connection with the audit or evaluation off federal- or state-supported education programs, or in connection with the enforcement of federal legal requirements that relate to those programs. 34 CFR §§ 99.31(a)(3) and 99.35.

May an educational agency or institution disclose personally identifiable information from students education records to third parties for the purpose of conducting a study on its behalf?
FERPA contains an exception to its general consent rule under which an educational agency or institution may disclose personally identifiable information from education records without consent to organizations conducting studies for, or on its behalf. Studies must be only for the purpose of: developing, validating, or administering predictive tests; administering student aid programs; or improving instruction. A written agreement with the organization is required, specifying the purposes of the study and the use and destruction of the information. 34 CFR § 99.31(a)(6)

May parents or eligible students be provided access to education records that contain information on more than one student?
If the education records of a student contain personally identifiable information on other students, the parent or eligible student may inspect or review or be informed of only the specific information about the student in question. 34 CFR § 99.12.

May schools publish honors and awards received by a student?
Schools may disclose honors and awards received by students if it has properly designated “honors and awards” as a category in its directory information policy and has followed the requirements in FERPA for notifying parents and/or eligible students about the policy.

Must postsecondary institutions provide a parent with access to an eligible student’s education records?
While the rights under FERPA transfer from the parents to the student when the student turns 18 or enrolls in a postsecondary institution at any age, FERPA provides ways in which an institution can share education records on the student with his or her parents. Schools may disclose any and all information to parents, without the consent of the eligible student, if the student is a dependent for tax purposes under the IRS rules. FERPA also permits a school to disclose information from an eligible student’s education records to parents if a health or safety emergency involves their son or daughter. Another provision in FERPA permits a college or university to let parents of students under the age of 21 know when the student has violated any law or policy concerning the use of possession of alcohol or a controlled substance. School officials may also share information with a parent about an eligible student that is based on that official’s personal knowledge or observation and that is not based on information contained in an education record.

To which educational agencies or institutions does FERPA apply?
FERPA applies to educational agencies or institutions that receive funds from programs administered by the U.S. Department of Education. By “educational agencies or institutions” we mean public schools, school districts (or “local educational agencies” (LEAs)), and postsecondary institutions, such as colleges and universities.  Private and parochial schools at the elementary and secondary level generally do not receive such funding and are, therefore, not subject to FERPA.

Under FERPA, may an educational agency or institution disclose education records to any of its employees without consent?
No. FERPA permits an educational agency or institution to disclose, without consent, personally identifiable information from students’ education records only to school officials within the educational agency or institution that the educational agency or institution has determined to have legitimate educational interests in the information. 34 CFR § 99.31(a)(1). Generally, a school official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility.

What actions must the agency or institution take to ensure the parent or eligible student receives a timely and fair hearing regarding the amendment of education records?
The educational agency or institution must provide the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing. The individual conducting the hearing must not have a direct interest in the hearing’s outcome. The agency or institution must give the parent or eligible student a full and fair opportunity to present relevant evidence. Finally, the agency or institution must make its decision in writing within a reasonable period of time after the hearing, and this decision must be based solely on the evidence presented at the hearing, include a summary of the evidence, and give the reasons for the decision.

What is an education program?
“Education program” is defined as any program principally engaged in the provision of education, including, but not limited to, early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, and any program that is administered by an educational agency or institution. 34 CFR § 99.3

What is an education record?
"Education records" are records that are directly related to a student and that are maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. These records include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K-12 level), student financial information (at the postsecondary level), and student discipline files. The information may be recorded in any way, including, but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and e-mail.

Source: 34 CFR § 99.2

What is FERPA?
The Family Educational Rights and Privacy Act (FERPA) is a federal law that affords parents the right to have access to their children’s education records, the right to seek to have the records amended, and the right to have some control over the disclosure of personally identifiable information from the education records. When a student turns 18 years old, or enters a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student (“eligible student”). The FERPA statute is found at 20 U.S.C. § 1232g and the FERPA regulations are found at 34 CFR Part 99.

PPRA also concerns marketing surveys and other areas of student privacy, parental access to information, and the administration of certain physical examinations to minors. The rights under PPRA transfer from the parents to a student who is 18 years old or an emancipated minor under state law.

What must a consent to disclose education records contain?
FERPA requires that a consent for disclosure of education records be signed and dated, specify the records that may be disclosed, state the purpose of the disclosure, and identify the party or class of parties to whom the disclosure may be made. 34 CFR § 99.30. As such, oral consent for disclosure of information from education records would not meet FERPA’s consent requirements.

A model PPRA general notification for use by LEAs may also be obtained on SPPO’s website at: Model Notification of Rights Under PPRA

What records are exempted from FERPA?
Exempted from the definition of education records are those records which are kept in the sole possession of the maker of the records and are not accessible or revealed to any other person except a temporary substitute for the maker of the records. Once the contents or information recorded in sole possession records is disclosed to any party other than a temporary substitute for the maker of the records, those records become education records subject to FERPA. Generally sole possession records are of the nature to serve as a “memory jogger” for the creator of the record. For example, if a school official has taken notes regarding telephone or face to face conversations, such notes could be sole possession records depending on the nature and content of the notes.

What rights does a parent or eligible student have if, as a result of the hearing, the school decides that the information in the education record is not inaccurate or misleading?
The parent or eligible student has the right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision of the agency or institution. The agency or institution must maintain the statement with the contested part of the record for as long as the record is maintained disclose the statement whenever it discloses the portion of the record to which the statement relates.

What student records are schools required to disclose to military recruiters?
A provision in the No Child Left Behind (NCLB) - section 9528 — and the National Defense Authorization Act for Fiscal Year 2002 require, with some exceptions, the disclosure of directory-type information (students’ names, addresses, and telephone listings) to military recruiters, as well to recruiters from colleges and universities.

What types of notification do local educational agencies (LEAs), i.e., school districts, have to make to parents about the Protection of Pupil Rights Amendment (PPRA)?
There are three types of notification an LEA must provide parents and students. The first one is a general notification of their rights under PPRA.

The third notice is a notification of the policies LEAs are required to develop, in consultation with parents, under PPRA. The LEA shall provide the notice at least annually, at the beginning of the school year, and within a reasonable period of time after any substantive change in the policies.

When does a parent or eligible student have a right to a hearing?
An educational agency or institution must hold a hearing within a reasonable time after it has received a request from the parent or eligible student challenging the content of the student’s education records on the grounds that the information contained in the education records is inaccurate, misleading, or in violation of the privacy rights of the student.

When is a photo or video of a student an education record under FERPA?
As with any other “education record,” a photo or video of a student is an education record, subject to specific exclusions, when the photo or video is: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. (20 U.S.C. 1232g(a)(4)(A); 34 CFR § 99.3 “Education Record”)[1]

A photo or video should not be considered directly related to a student in the absence of these factors and if the student’s image is incidental or captured only as part of the background, or if a student is shown participating in school activities that are open to the public and without a specific focus on any individual.

Maintained by an educational agency or institution:
To be considered an education record under FERPA, an educational agency or institution, or a party acting for the agency or institution, also must maintain the record. Thus, a photo taken by a parent at a school football game would not be considered an education record, even if it is directly related to a particular student, because it is not being maintained by the school or on the school’s behalf. If, however, the parent’s photo shows two students fighting at the game, and the parent provides a copy of the photo to the school, which then maintains the photo in the students’ disciplinary records, then the copy of the photo being maintained by the school is an education record.

Exclusion for Law Enforcement Unit Records
The FERPA statute and regulations (20 U.S.C. 1232g(a)(4)(B)(ii) and 34 CFR §§ 99.3 and 99.8) exclude from the definition of education records those records created and maintained by a law enforcement unit of an educational agency or institution for a law enforcement purpose. Thus, if a law enforcement unit of an educational agency or institution creates and maintains the school’s surveillance videos for a law enforcement purpose, then any such videos would not be considered to be education records. If the law enforcement unit provides a copy of the video to another component within the educational agency or institution (for example, to maintain the record in connection with a disciplinary action), then the copy of the video may become an education record of the student(s) involved if the video is not subject to any other exclusion from the definition of “education records” and the video is: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.

[1] The Individuals with Disabilities Education Act (IDEA) also contains privacy protections that apply to children with disabilities. 20 U.S.C. 1417(c) and 34 CFR §§ 300.610-300.626 and 34 CFR §§ 303.401-303.416. Under the IDEA, participating agencies must protect the personally identifiable information (PII), data, or records that are collected, maintained, or used by the participating agency. While the definition of “education record” under Part B of the IDEA cross-references the FERPA definition in 34 CFR § 99.3, the application of IDEA requirements may raise different questions.

Who is a parent?
The term "parent" is defined as including natural parents, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.

Who is an eligible student?
An “eligible student” means a student who has reached the age of 18 or who is attending a postsecondary institution at any age. Once a student becomes an “eligible student,” the rights afforded his or her parents under FERPA transfer to that student.

Source: 20 U.S.C. § 1232g(d)

FAQs on Photos & Videos under FERPA
1. When is a photo or video of a student an education record under FERPA?
As with any other “education record,” a photo or video of a student is an education record, subject to specific exclusions, when the photo or video is: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. (20 U.S.C. 1232g(a)(4)(A); 34 CFR § 99.3 “Education Record”)[1]

A photo or video should not be considered directly related to a student in the absence of these factors and if the student’s image is incidental or captured only as part of the background, or if a student is shown participating in school activities that are open to the public and without a specific focus on any individual.

Maintained by an educational agency or institution:
To be considered an education record under FERPA, an educational agency or institution, or a party acting for the agency or institution, also must maintain the record. Thus, a photo taken by a parent at a school football game would not be considered an education record, even if it is directly related to a particular student, because it is not being maintained by the school or on the school’s behalf. If, however, the parent’s photo shows two students fighting at the game, and the parent provides a copy of the photo to the school, which then maintains the photo in the students’ disciplinary records, then the copy of the photo being maintained by the school is an education record.

Exclusion for Law Enforcement Unit Records
The FERPA statute and regulations (20 U.S.C. 1232g(a)(4)(B)(ii) and 34 CFR §§ 99.3 and 99.8) exclude from the definition of education records those records created and maintained by a law enforcement unit of an educational agency or institution for a law enforcement purpose. Thus, if a law enforcement unit of an educational agency or institution creates and maintains the school’s surveillance videos for a law enforcement purpose, then any such videos would not be considered to be education records. If the law enforcement unit provides a copy of the video to another component within the educational agency or institution (for example, to maintain the record in connection with a disciplinary action), then the copy of the video may become an education record of the student(s) involved if the video is not subject to any other exclusion from the definition of “education records” and the video is: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.

2. Can the same recorded image be the education record of more than one student under FERPA?
Yes. For example, a surveillance video that shows two students fighting on a school bus that the school uses and maintains to discipline the two students, would be “directly related to” and, therefore, the education record of both students.

3. If a video is an education record for multiple students, can a parent of one of the students or the eligible student view the video?
When a video is an education record of multiple students, in general, FERPA requires the educational agency or institution to allow, upon request, an individual parent of a student (or the student if the student is an eligible student) to whom the video directly relates to inspect and review, or "be informed of" the content of the video, consistent with the FERPA statutory provisions in 20 U.S.C. § 1232g(a)(1)(A) and regulatory provisions at 34 CFR § 99.12(a). FERPA generally does not require the educational agency or institution to release copies of the video to the parent or eligible student.

In providing access to the video, the educational agency or institution must provide the parent of the student (or the student if the student is an eligible student) with the opportunity to inspect and review or "be informed of" the content of the video. If the educational agency or institution can reasonably redact or segregate out the portions of the video directly related to other students, without destroying the meaning of the record, then the educational agency or institution would be required to do so prior to providing the parent or eligible student with access. On the other hand, if redaction or segregation of the video cannot reasonably be accomplished, or if doing so would destroy the meaning of the record, then the parents of each student to whom the video directly relates (or the students themselves if they are eligible students) would have a right under FERPA to inspect and review or "be informed of" the entire record even though it also directly relates to other students.

For a fuller legal analysis and explanation of this issue, please see the 2017 Letter to Wachter.

4. If a video is an education record for multiple students, can the parent of one of the students (or the eligible student) receive a copy of the video?
While we do not advise on an educational agency’s or institution’s obligations under any state open records laws that may apply, we note that FERPA does not generally require an educational agency or institution to provide copies of education records to parents and eligible students[2]. That said, it would not violate FERPA for an educational agency or institution to non-consensually disclose to an eligible student or to his or her parents copies of education records that the eligible student or his or her parents otherwise would have the right to inspect and review under FERPA.

For a fuller legal analysis and explanation of this issue, please see the 2017 Letter to Wachter.

5. If redaction or segregation of an education record of multiple students can be reasonably accomplished without destroying the meaning of the education record, can educational agencies and institutions charge parents or eligible students for the costs of the redaction or segregation?
No. FERPA provides parents and eligible students with the right to inspect and review the student’s education records, and nothing in the FERPA statute or regulations permits educational agencies and institutions to charge parents or eligible students for fees or costs associated with exercising that right.

If a school elects to provide a parent or eligible student with a copy of the education records, then the FERPA regulations (34 CFR § 99.11(a)) generally permit (with the exception noted below) the school to charge for the costs required to make the copy. FERPA regulations (34 CFR § 99.11(b)) also provide that the school may not charge a parent or eligible student for the costs to search for or retrieve the education records. We view the costs, if any, to the school of redacting, or segregating, education records of multiple students as being like the costs of search and retrieval that may not be charged to parents or eligible students, rather than like the costs for copies that generally may be charged to parents and eligible students. As noted above, if an educational agency or institution can reasonably redact or segregate out portions of an education record that is directly related to other students, without destroying the meaning of the record, then the educational agency or institution must do so and therefore cannot charge parents or eligible students for the costs associated with exercising their right to inspect and review such education records.

In contrast, parents and eligible students generally may be charged for the costs of making copies of education records precisely because FERPA generally does not require the school to provide them with such copies. Thus, where the redaction or segregation of education records of multiple students can be reasonably accomplished without destroying the meaning of the education records, nothing in FERPA permits educational agencies or institutions to charge parents or eligible students for the costs of making the required redactions or segregation. Please note that the FERPA regulations (34 CFR § 99.11(a)) similarly provide that if a fee for copies effectively prevents a parent or an eligible student from exercising the right to inspect and review his or her education records, an educational agency or institution would be required to provide copies without payment. Such cases would be limited to a parent or an eligible student providing evidence of the inability to pay for the copies due to financial hardship.

6. Does FERPA permit legal representatives of parents or eligible students to inspect and review videos with the parent or eligible student?
Yes. FERPA permits legal representatives of a parent or an eligible student to inspect and review videos with the parent or eligible student. While FERPA does not require educational agencies and institutions to allow parents or eligible students to bring their attorney or other legal representative with them when they exercise their right to inspect and review the student’s education records, nothing in FERPA prevents educational agencies and institutions from allowing parents or eligible students to bring their attorney or other legal representative with them when they exercise their right to inspect and review the student’s education records under FERPA.

7. Does FERPA permit educational agencies and institutions turn over videos to the police upon request or following an incident that may warrant police involvement?
If the law enforcement unit of an educational agency or institution creates and maintains videos for a law enforcement purpose, then the videos would not be education records and FERPA would not prohibit the law enforcement unit of an educational agency or institution from disclosing the videos to the police. If the videos are education records, however, educational agencies and institutions may not turn over videos to the police upon request without having first either obtained the written consent of the parent or eligible student or determined that the conditions of an exception to the general requirement of consent have been met, such as if the disclosure is made in connection with a health or safety emergency (20 U.S.C. 1232g(b)(1)(I) and 34 CFR §§ 99.31(a)(10) and 99.36) or the law enforcement officer has presented the educational agency or institution with a judicial order or a lawfully issued subpoena (20 U.S.C. 1232g(b)(1)(J) and (b)(2) and 34 CFR § 99.31(a)(9)).

[1] The Individuals with Disabilities Education Act (IDEA) also contains privacy protections that apply to children with disabilities. 20 U.S.C. 1417(c) and 34 CFR §§ 300.610-300.626 and 34 CFR §§ 303.401-303.416. Under the IDEA, participating agencies must protect the personally identifiable information (PII), data, or records that are collected, maintained, or used by the participating agency. While the definition of “education record” under Part B of the IDEA cross-references the FERPA definition in 34 CFR § 99.3, the application of IDEA requirements may raise different questions.

[2] If circumstances effectively prevent the parent or eligible student from otherwise exercising their right to inspect and review the student’s education records (e.g., if the parent lives outside of commuting distance to the school), then the educational agency or institution would be required to either provide a copy of the records or to make other arrangements for the parent or eligible student to inspect and review the records. 34 CFR § 99.10(d)