Are the Records of School Resource Officers or School Security Officers Considered School Records Under the Family Educational Rights and Privacy Act (“FERPA”)?

With respect to FERPA and its requirements regarding the disclosure of student records and personally identifiable student information, there are different rules in place for “school security” officials that are based upon their affiliation. Why is it important to determine who a school district’s law enforcement unit is (or if it even has a law enforcement unit)?  Because FERPA specifically provides that records of law enforcement units are not “education records” under FERPA.  Law enforcement unit records, therefore, may be released without parental permission subject to school policy and other state and federal laws.  Thus, for example, records of a school district’s law enforcement unit could be released to the local police department without parental permission.  If, however, the school’s law enforcement unit officer is also a school official under FERPA, the district must be careful to maintain law enforcement records separately from education records in order to avoid unintended releases of protected information.

What is a “law enforcement unit?”

Depending on the size of the district, schools provide security through different methods, ranging from a school having its own police units, having a security staff or designating a principal or other school official to act as the law enforcement unit officer. Districts also may use non-school employees such as local police officers and school resource officers (“SROs”) as their designated law enforcement unit officers.  Under FERPA, a “law enforcement unit” means any individual, office, department, division, or other component of the school or district that is officially authorized or designated by the school or district to (1) enforce any local, state or federal law, or refer to appropriate authorities a matter for enforcement of any local, state or federal law, against any individual or organization other than the agency or institution itself; or (2) maintain the physical security and safety of the agency or institution.  34 C.F.R. §99.8(a)(1).

What are considered “law enforcement records” under FERPA?

Not all records of student misconduct are law enforcement records simply because they pass through the hands of the school’s law enforcement unit officer. In order to be considered a “law enforcement record,” it must have been (1) created by a law enforcement unit, (2) created for law enforcement purposes, and (3) be maintained by the law enforcement unit.

Can law enforcement unit officials access students’ education records?

The answer depends on whether the law enforcement unit official is also a school employee. A law enforcement official who is also a school employee generally is considered a school official who can access education records without parent permission as long as the individual has a legitimate educational interest in the records.

When a law enforcement unit official is not a school employee, such as when the district uses police officers or SROs assigned by the local law enforcement agency for security, they may be considered school officials for purposes of FERPA under certain circumstances if the school has outsourced the function of providing safety and security for the school to the law enforcement unit officials. They may then be considered school officials if they (1) perform a function for which the school would otherwise use employees; (2) are under the direct control of the school with respect to the use and maintenance of education records; (3) they are subject to FERPA’s use and re-disclosure requirements; and (4) they meet the criteria specified in the school’s annual FERPA notification for being school officials with legitimate educational interests in educational records.  The U.S. Department of Education suggests that in these situations, districts enter into a Memorandum of Understanding with the law enforcement unit that addresses these issues.  In fact, under Connecticut law, each local or regional board of education that assigns a SRO to any of its schools is already required to enter into a memorandum of understanding with the local law enforcement agency regarding the role and responsibility of the SRO (which would naturally include the officer’s status under FERPA). Connecticut General Statutes §10-233m.

But note, if a non-school employee such as a SRO accesses a student’s education records in his or her capacity as a “school official”, that officer is then bound by the confidentiality provisions of FERPA and may not re-disclose that information, even to his/her own police department or co-workers, unless it fits one of the other FERPA exceptions. Thus, he/she may only use the information received for the purposes for which disclosure was made.

The U.S. Department of Education recently released guidance regarding School Resource Officers, School Law Enforcement Units and the Family Education Rights and Privacy Act. That guidance can be accessed through the following link:  https://studentprivacy.ed.gov/sites/default/files/resource_document/file/SRO_FAQs_2-5-19_0.pdf.  While such guidance is not binding, the courts do usually afford it considerable deference.