Yes, FERPA requires that if a disclosure is made without consent under the health/safety emergency or authorized representative exceptions, the District must record in the student's education records the articulable and significant threat that formed the basis for the disclosure, and the parties to whom it disclosed the information. So if the District disclosed student information to FL DOE without consent, it should record that disclosure in the student's education file. This ensures transparency about disclosures of student information without consent.

1. Top-performing urban school district in Florida
FERPA Including its Applicability to Social Media
in School Board Policy 2.503:
Family Educational Rights and Privacy Act
Student Records and Privacy

2. 2
Detailed description of FERPA and its
regulations as adopted in 2009: See
Florida's June 30, 2009 DOE TAP on
FERPA found at :
http://info.fldoe.org/docushare/dsweb/G
et/Document-5441/dps-2009-103.pdf

3. 3
Note: FERPA does not involve the time for retention of Student
Records
(HOWEVER, one provision of FERPA does state DO NOT
DESTROY student records if there is a pending student records
request)
•The time period required to retain student records is governed by
Florida Law
•Student education records must be retained as stated in the
District’s Records Retention Schedule found on the Records
Management website at:
https://www.palmbeachschools.org/records/wp-content/uploads/sites/9/

4. 4
Importance of Retention of Student Education
Records
If District is in litigation and records needed or relevant
for litigation had been destroyed prior to time period for
retention,
1)More difficult for District to prove its case
2)Possible claim by opposition of spoliation of evidence and
some court rulings could go against the District

5. HYPOTETICAL: INTRODUCTION TO A FERPA ISSUE
•A parent has made a request at the school level to see the
records for her child. The school gives her access within 10
days. After review, she states that she does not want her
husband, who she has been separated from for one year, to
have access to the records. The next day, the father comes
into the school and requests access to the file and states that
he needs the information to prepare for the custody battle
between him and his wife. The school
secretary calls you to find out what she should do.
•What do you tell the dad? 5

6. 6
Answer:
Both parents have access to their student’s educational records
(unless student is 18 and not a dependent), unless
ere is
a court order or agreement barring access for that parent and
chool has a copy.
If unknown, ask for identification and confirm he is the dad.
Also, should let mom know that her request to block access cannot
be honored without a court order or if he is not the dad.

7. ISSUES COVERED BY FERPA
• Gives parents the right to inspect, review, and amend their child’s
education records for certain reasons, and protects those confidential
records from nonconsensual disclosure to third parties to protect
student privacy unless there is a statutory exception.
Special Ed Connection- SmartStart: FERPA- Defining
Education Records
7

8. Authority for Student Privacy
FERPA Florida Law School Board Policy
• *Federal Statute –20 U.S.C. 1232
g
• Florida Statutes Section 1002.22
(Adopts FERPA)
• *Policy 5.50 – Student Education
Records (currently being
updated)
• *Federal Regulations –34 C.F. R.
Part 99
• Florida Statutes Section
1002.221
• Policy 3.29 -- Acceptable Use of
Technology by Employees (not to
improperly disclose confidential
information0
• *Family Policy Compliance
Office, U.S. Department of
Education –(FPCO letters)--
interpretations
• State Board of Education Rule
6A- 1.0955
Policy 2.503 – Social Media –
(includes provisions to not disclose
confidential student information
absent prior written consent from
parent)
8

9. Student Education Records 34 CFR 99.3
•Those records that are:
•(1)Directly related to a student; and
•(2) Maintained by the District or by a party acting
for the District.*
*May include handwriting, print, computer media, video or audio tape, film, microfilm, or microfiche
9

10. 10
HYPOTHETICAL QUESTION:
Parent takes a video of his/her student’s chorus recital.
Is it a student education record?
Who maintains it?
Is it maintained by the District?
What if the chorus teacher asked the parent to make a video
for the teacher—is it a student education record?

11. Definition States What is NOT a
student education record?
• (1) Records that are
• kept in the sole possession of the maker,
• are used only as a personal memory aid, and
• are not accessible or revealed to any other person except a
temporary substitute for the maker of the record.
(thus, if shown to principal or other teachers—not in
exception)
• (2) Records of the law enforcement unit of the District, subject
to the provisions of § 99.8, which include that the record is
maintained by that unit for a law enforcement purpose, not
for student discipline. 11

12. •(3) Records of a student relating solely to the
student’s employment with the District
•(5) Records created or received by the District
after an individual is no longer a student in
attendance and that are not directly related to the
individual's attendance as a student.
•(6) Grades on peer-graded papers before they are
collected and recorded by a teacher (based on a US
Supreme Court decision)
12

13. Who has access to student records?
•Students 18 years or older (eligible student)
•Parents/Guardians, unless a Court Order or agreement
that bars access is on file that denies access
o Parent also has no access if the
student is 18 or older
and not a dependent of a
Parent/Guardian.
13

14. 14
Access to Parents (Cont’d)
Use reasonable methods to identify and
authenticate the identity of parents and
students for access 34 CFR 99.31
Limit on Parent Inspection:
Education records of a student contain information on more
than one student, the parent or eligible student may inspect
and review or be informed of only the specific information
about that student. 34 CFR 99.12 (Examples: discipline record
of a fight or a bullying reports may name more than one
student)

15. 15
Who Else Has Access (Cont’d)
•Third parties who provide written
consent requests signed by parent or
eligible student
•School to which a student is transferring
•Other Exceptions stated later

16. Note:
Parents’ rights transfer to the student when
he or she reaches the age of 18 and the
students to whom the rights have
transferred are "eligible students.“
Must be provided access (right to inspect
and review) within 30 days of request but
best practice to provide access as soon as 16

17. 17
Does access include providing copies?
•Schools often do provide copies and may be provided per Policy if
requested
•FERPA only requires providing copies or make other arrangement if
due to circumstances parent is unable to inspect and review (such as
lives out of state) FPCO Opinion Oct. 24, 2016
Can District/school charge for copies?
•Yes, per fee schedule in policy (though not for search time) BUT
CANNOT CHARGE if the cost would prevent access
District must also respond to reasonable requests and provide an
explanation or interpretation of student education records

18. Both FERPA and Florida Statute provide parents with the rights:
•To access, inspect and review (within reasonable time not to
exceed 30 days under Florida law)
•To waive access to certain educational records
•To receive annual notice of their rights with respect to
education records (In Student Handbook on District website)
K-12 Students
FERPA & 1002.22 Rights
18

19. Additional Rights of Parents
•To challenge (due process procedures apply)
records if they are
o Inaccurate
o Misleading or in
o Violation of privacy or other rights
19

20. 20
Question: If District is required to change a student
record due to a teacher’s reasoning for giving a
certain grade?
Answer: No, per cases cited in Policy
Privacy issues arise as examples, and could be resolved
per informal resolution in Policy:
•Student is adopted and request for name change
•If for transgender student there is request for name
change and change of sexing records—contact
June Eassa pre recent Dept. of Justice guidance

21. 21
Additional Rights of Parents
•To consent to disclosures except if
non-consensual disclosures are
allowed by FERPA (34 CFR 99.30 and
99.31)

22. CONFIDENTIALITY OF STUDENT
EDUCATION RECORDS
• Student education records are CONFIDENTIAL AND EXEMPT from
public record disclosure and public records requests (FS 1002.221)
22

23. 23
Note: May 2016 FPCO opinion letter:
While FERPA shields personally identifiable information
from unauthorized disclosures, it does not protect the
confidentiality of information in general.
Information obtained through personal knowledge or
observation, not from education records, falls outside the
scope of FERPA's parental consent requirement.
Thus, principal’s disclosure of information gained from
observing student did not violate FERPA and FPCO
declined to investigate.

24. 24
CONSEQUENCES OF VIOLATING STUDENT PRIVACY LAWS
•Under FERPA, complaint may be filed with US
DOE and could impact District’s receipt of federal
funds
•Under Florida law, the aggrieved parent or
student:
ohas an immediate right to bring an action in
circuit court to enforce his or her rights by
injunction
oIf injunctive relief is granted, parent/student may
be awarded attorney fees and court costs.

25. 25
Example of an actual scenario:
School creates or uses a form notifying teachers who complete the
form with comments regarding a student that the comments are
confidential and cannot be viewed by the parent/eligible student.
The document meets the definition of a student education record
maintained by the school or District.
Can a school make a document confidential from
a parent when the document is a student
education record?

26. WHAT IS PARENTAL CONSENT?
The written consent must:
(1) Specify the records that may be disclosed;
(2) State the purpose of the disclosure; and
(3) Identify the party or class of parties to whom the
disclosure may be made.
26

27. •Need written consent from parent or eligible student to
access a student’s education records (PBSD 0313 is an
acceptable form of release)
• Example—for attorney of parent
• Though law provides certain exceptions
What is needed for access to student records or
information contained in those records?
27

28. Written Consent may also exist:
Check to see if written parental consent exists for certain
information:
• PBSD 0636 New and Returning Student Registration
(page 4 Parental consent for release of student
photograph and information) (MUST OPT-IN) or
• PBSD 1941 Release and Consent for Student Information
Publication (also use for special types of events not
covered generally by the form)
• or similar form is signed before releasing student’s
name, including notification for honors or yearbook
28

29. 29
Ms. Mannos is a new teacher at Follow-Us Middle School. She has just
completed a science unit on matter and posted pictures on her Facebook
account in which she highlights all of the experiments the students
completed in the unit. All of the students backs are turned to the camera as
they conduct the experiment. A mutual friend of Ms. Mannos and the parents
of one of her students recognizes one of the children and informs the parents.
The parents become irate and call the school principal. Ms. Mannos claims
that she is well within her right because it is not her personal Facebook page,
but one she created specifically for her classroom and that there is no
identifiable information on any of the students in the picture. The principal
of the school calls to consult with you.

30. 30
What do you tell her?
Is there personally identifiable information?
2015 Utah Case—face redaction may be insufficient as could recognize body
shape, clothing or otherwise
What if teacher posted this on her personal Facebook page—is it
a student education record?
Look at teacher’s intent, was it taken during school time, show students
doing a school activity, taken or transmitted with school equipment—these are
factors to determine if record is maintained by employee as a person
acting on behalf of the District

31. 31
Social Media Policy 2.503 (recently adopted by School Board)
•Unless within an exception (such as written parental consent), District employees and
persons associated with a school/department shall never share confidential or exempt
student information protected by FERPA on social media sites
•Personally identifiable student information, including names, videos and photographs,
shall not be posted without the written, informed consent of the student’s parent/legal
guardian, or student of legal age, and with the principal’s approval.
•Confidential or privileged information about students (e.g., grades, attendance records,
or other student education record information) may be shared, if allowed by law, only on
District approved secured connections by authorized individuals.

32. 32
Social Media Policy (Cont’d)
Instructional use of social media for students that is
conducted in a system open to the public:
• must be approved by the principal/District
Department Director and
•must include written parental consent consistent
with FERPA.
•Parents must be notified of the intent and purpose of
the public activities and process by which the content
will be moderated.

33. 33
See also Oct. 3, 2016 US DOE Privacy Technical
Assistance video on PROTECTING STUDENT PRIVACY
WHILE USING ONLINE EDUCATIONAL SERVICES
View at: http://ptac.ed.gov/ptac-guidance-videos ,
scroll down, and click the video for PROTECTING
STUDENT PRIVACY WHILE USING ONLINE
EDUCATIONAL SERVICES

34. Exceptions—Access Allowed Without Consent:
34 CFR 99.31 where access to student education record
information is allowed absent parental consent include:
• School officials have a right to see student records
in which they have a “legitimate educational
interest”
34

35. 35
Hypothetical:
A School District employee is curious about how some
students in his neighborhood are performing in school
and if they are being provided ESE services?
Is the School or District allowed to show this information
without parental consent?
Does the curious neighbor have a “legitimate educational
interest” to receive the information?

36. 36
HYPOTHETICAL FROM JAN. 9, 2017 FPCO OPINION
Parent alleged that the paraprofessional showed photos indicating that
the student was physically abused to a hall monitor and paraeducator
without her permission and they had no need to see them.
Was this disclosure a violation of FERPA?
FPCO determined it was unclear whether they had a legitimate
educational interest in the photos—if those school officials needed to
see the photos to carry out their professional duties.
FPCO instructed the district to investigate the incident to determine if
the alleged disclosure of seeing the photos was needed to perform
their official duties.
.

37. Exceptions Allowing Access (Cont’d):
•“Other school officials”—such as certain
vendors
o These types of officials are disclosed in the
District’s Annual FERPA Student Records
Notice in the Student Family Handbook on
the District website (pages 20-21)
37

38. o This includes other agencies in specific
circumstances where the District has outsourced its
institutional services or functions, work that could
have been done by District employees, and District
retains control.
Note: Access is limited only to those personnel who
have legitimate educational interest in the
information contained in the records being sought.38

39. 39
CONTRACTS WITH VENDORS AS “OTHER SCHOOL OFFICIALS”
If any PII student information from student education
records is to be received, vendor needs to:
• Meet “other school official” criteria
•Include with its contract with School Board an Addendum:
PBSD 2220
https://www.palmbeachschools.org/wp-content/uploads/sites/10/2
o This protects student privacy to limits information
received and restrict redisclosure

40. Exceptions Allowing Access Without Consent (Cont’d)
•Accrediting organizations carrying out their accreditation
function.
•Particular parties in health and safety emergencies if knowledge
of the information is necessary to protect the health and safety
of the student or other individuals. (regulation was adopted after
massacre at Virginia Tech)
o Must place in student’s file in writing basis for
emergency and to whom disclosure was made per 34
CFR 99.32 40

41. 41
Exceptions to Access Without Consent
Florida DOE contacts the District and needs
specific student information relating to
test results.
May the District release, without parental
consent, the student education records
to Florida DOE containing this information?
Answer: See next slide

42. 42
Exceptions Allowing Access Without Consent
(Cont’d)
•Disclosure is to authorized representatives of—
(i) The Comptroller General of the United States;
(ii) The Attorney General of the United States;
(iii) The Secretary; or
(iv) State and local educational authorities.
•Also authorized to disclose to organizations
conducting studies on behalf of the District to
improve student instruction

43. 43
• Again for these disclosures, use
reasonable methods to identify
and authenticate the identity of
parties to whom the agency or
institution discloses personally
identifiable information from
education records.

44. Placing a record in student’s file of disclosures
Question: What is current practice if District sends student information to FL DOE
—is the disclosure recorded in the student’s record?
Per 34 CFR Sec. 99.32, with certain exceptions, educational institutions must
maintain a record with student’s educational records of:
• Each request for access to and each disclosure of personally identifiable
information from the education records of each student
44

45. 45
• The names of State and local educational authorities, Federal
officials and agencies listed in § 99.31(a)(3) that may make further
disclosures of personally identifiable information from the student's
education records without consent under § 99.33(b)
oIn Federal Register and speaking to a US DOE FPCO employee, key is
whether the recipient authority makes further disclosures—if DOE
does not, no need to record in student’s file.
oIf FL DOE did redisclose, they must notify the District, and District to
record disclosure in student’s file.
For a research organization that may redisclose—must record
the disclosure.

46. Requirements of the Recording
For each request or disclosure the record must include:
(i) The parties who have requested or received personally
identifiable information from the education records; and
(ii) The legitimate interests the parties had in requesting or
obtaining the information
46

47. Some Other Exceptions to Recording
Disclosures
If the disclosure was to:
(1) The parent or eligible student;
(2) A school official under § 99.31(a)(1) (including those to whom
the District outsourced institutional services or functions);
(3) A party with written consent from the parent or eligible
student; 47

48. Exceptions to Recording Disclosures (Cont’d)
4) A party seeking directory information; or
5) A party seeking or receiving records in accordance with § 99.31(a)(9)
(ii)(A) through (C) (including a Federal grand jury subpoena, any other
subpoena issued for a law enforcement purpose and the court or other
issuing agency has ordered that the existence or the contents of the
subpoena or the information furnished in response to the subpoena not
be disclosed; or an ex parte court order obtained by the United States
Attorney General concerning certain offenses).
48

49. This District has no directory
information policy—
thus absent one of the exceptions, no student
record information can be disclosed without
written consent.
49

50. 50
**De-identified (redacted) student records
and information
District may release the records or information
without the consent required after the removal of
all personally identifiable information provided
that the District has made a reasonable
determination that a student's identity is not
personally identifiable, whether through single or
multiple releases, and taking into account other
reasonably available information.

51. WHAT IS CONSIDERED
“PERSONALLY IDENTIFICABLE INFORMATION”
(“PII”)
THAT CAN IDENTIFY A STUDENT? 34 CFR 99.3
• The term includes, but is not limited to—
• (a) The student's name;
• (b) The name of the student's parent or other family
members;
• (c) The address of the student or student's family;
• (d) A personal identifier, such as the student's social security
number, student number, or biometric record; 51

52. (e) Other indirect identifiers, such as the student's date of
birth, place of birth, and mother's maiden name;
(f) Other information that, alone or in combination, is linked
or linkable to a specific student that would allow a
reasonable person in the school community, who does not
have personal knowledge of the relevant circumstances, to
identify the student with reasonable certainty; or
[Example in a FPCO letter: News media already had some
information and if the additional information was released
people would be able to identify the student.]
52

53. 53
(g) Information requested by a person who the educational
agency or institution reasonably believes knows the identity
of the student to whom the education record relates.
[Example: An article in the newspaper names a student
involved with an incident. Then there is a public records
request relating to the discipline record resulting from that
incident. It is already known the identity of the student and
the record cannot be produced, even redacted.]

54. **Emails containing student
informationCan student information (PII) be included in an internal email?
Preferably not but it must be protected if sent and follow
process
to maximize security as you have been instructed.
Although there are no Family Policy Compliance Office (FPCO) letters
of guidance available on this issue, informal guidance states:
• Use a secure, encrypted system
• Use proper safeguards
School District of Palm Beach County 2015
54

55. • IT advises that District’s google email system
uses a secure encrypted HTTPS connection
• Internal District emails are protected, yet
note:
55

56. 56
• Per Eric Walsh in IT:
o Use Secure File Transfer Protocol
o Can secure with a word document and
with a PDF password protected
o Note, however, documents forwarded in
this manner are not retained and the
sender must retain them by another
method to prove what was sent

57. 57
• Many schools—use student
initials and include as little
student information as possible
in emails
• Follow this practice if so
directed by your school

58. ─HOWEVER :
•Before sending emails with student PII
information to an outside organization or
person, inquire and make sure their email system
is encrypted and secure
58

59. 59
*Oct. 3, 2016 US DOE Privacy Technical
Assistance video on Emailing student
protected information
View at: http://ptac.ed.gov/ptac-guidance-
videos and click the short video for Email and
Student Privacy.

60. 60
Video states:
If decide to email rather than walk to provide records, you want to
mitigate the risk of inadvertent disclosure of PII:
•Limit email to include only information needed
•Encrypt
•Double check the correct email address of recipients
•Sensitive information send in an attached protected file rather
than body of email and double check the attachment

61. 61
Video States (Cont’d)
•Follow District policies
o Note S.B Policy 3.29 (Employee Use of District
Technology) in section 3.1 of its incorporated Manual states:
Unacceptable uses of the District’s email and calendaring
system include but are not limited to:
• Violating the laws relating students' rights to privacy

62. Staff should carefully monitor the content of their emails
with the expectation that they could, at some point,
be deemed education records and thus disclosed
to a parent or other authorized recipient.
Are emails about a student considered student
education records?
School District of Palm Beach County 2015
Another Email Best Practice
62

63. Some Examples of Student Education
Records:
Individual Education Plans• Considered protected education records for purposes of FERPA
because they contain student information and the education agency
maintains them
64

64. Due Process Hearings
•Hearing decisions typically become a part of a student‘s
education record
•The decisions are available to the public. However, the
names of the students and parents and PII must be
redacted.
65

65. Request for Bullying
Reports• Parent/Eligible student is entitled to view report
• May inspect or review only specific information about the parent’s student
• Must redact names of other students mentioned and personally identifiable
information (PII)
• Students name
• Name of student’s parent or other family members
• Addresses
• Social Security numbers
• Date of birth, place of birth, mother maiden name
Alternatively show a summary of specific information
about the parent’s student
66

66. 67
Student Discipline Record
April 2016 court decision relating to University
of Florida
Student discipline records are considered
student education records

67. Military Recruiter and Colleges Access to
Student Records• Recruiters and institutions of higher learning are entitled only to student names,
addresses, and phone numbers of high school students
• Yet, parents may opt-out relating to military recruiters on page 4 of the New and
Returning Student Registration Form, PBSD 2138 opt-out form, or by letter
stating that they do not want information released to the military
• School must check the TERMS screen to determine if a parent has opted out
• School must maintain a record of the request, the party making the request and
receiving the information, and the interest the party had in receiving the
information
68

68. 69
Subpoenas & Court Orders for Student Records
•If a subpoena or court order is received for a particular
student’s education records, contact Dominique
Hyppolite, Specialist, Student Records, at px 47330.
o He will assist with the processing and responding
to the subpoena/court order and providing any
required notice.

69. Subpoenas & Court Orders
34 CFR 99.31(a)(9)
Disclosures without consent are allowed in response to a
subpoena or court order but only if:
•Reasonable effort is made to provide advance notice to
the parents or eligible student so they may seek
protective action
70

70. 71
Under Policy 5.50, advance notice is:
•5 days if a parents is a party to the
litigation
•10 days if the parents are not parties to
the litigation

71. Except, for example:
• No advance notice is required if:
o the subpoena or court order specifically states not to
disclose its receipt or response to it (“confidential”),
oIf the School Board sues a parent or student, disclosure to the
court, without a court order or subpoena, the education records
of the student that are relevant for the School Board to proceed
with the legal action as plaintiff, or
oIf a parent or eligible student sues the School Board, disclosure
to the court, without a court order or subpoena, the student's
education records that are relevant for the School Board to
defend itself. 72

72. 73
A School Board member who is a witness makes
a request to you for the file of a student who the
District is engaged in litigation with. There may
be pertinent information contained in the file
that the member wants to review before he
testifies. What do you do?

73. 74
See District’s FERPA notice in the Student Handbook (pages 20 –
21).
Does School Board member have a legitimate educational
Interest? US DOE letter. There is an implied waiver by parents of
FERPA privacy rights so School Board can disclose to a witness to
defend itself.
What if it was a judge who is presiding over the case who makes
the request? Can disclose to court per language in FERPA.
Is the parent of the student a party in the litigation—
plaintiff or defendant?

74. Family Policy Compliance Office (FPCO)
The Family Policy Compliance Office (FPCO), which is overseen by the Office
of the Chief Privacy Officer (OCPO) , implements the Family Educational
Rights and Privacy Act (FERPA) that seek to ensure student and parental
rights in education:
Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-5920
Phone: 1-800-USA-LEARN (1-800-872-5327)
http://www2.ed.gov/policy/gen/guid/fpco/index.html 75

75. 76
Other Resources
The U.S. Department of Education has
launched a Student Privacy Website at:
https://studentprivacy.ed.gov/?utm_content
=&utm_medium=email&utm_name=&utm_
source=govdelivery&utm_term=
This site includes FAQ’s:
https://studentprivacy.ed.gov/frequently-
asked-questions

76. T.I.P.S.
for Effectively Using the Office of General
Counsel
•Timeliness: Be sure to contact the Office of General Counsel or consult resources in a timely
fashion. Do not delay in addressing issues as seemingly small situations can escalate.
•Information: When dealing with a situation or contacting the Office of General Counsel, be
sure to gather and provide as much information about the situation as possible. The best
assistance can be given with full disclosure.
•Preserve: Document and preserve all evidence of a situation or issue. This will assist the
General Counsel in offering the best course of action and is critical if an issue escalates.
•Search: The Office of General Counsel provides many resources that can be searched in effort
to find the answers to many questions. These resources include:
• Duty calls
• Principal’s Toolkit
• Legally Speaking Bulletin
• Trainings 77

77. Questions?
78

78. Any questions on this PowerPoint
please direct to Bruce Harris, Esq. in
the Office of General Counsel
px 47377 or
Bruce.Harris@palmbeachschools.org
79