HEALTH AND SAFETY EXCEPTION TO FERPA’S CONFIDENTIALITY REQUIREMENTS

In this day and age where, sadly, tragedies have struck numerous schools across the country, the question of when schools are allowed to share personally identifiable student information with law enforcement frequently arises. The Family Educational Rights and Privacy Act (“FERPA”) allows schools to share education records when the disclosure is necessary to protect the health or safety of the student or other individuals.  Be aware, however, that this exception to the consent requirements in FERPA is limited to the period of the emergency and does not allow for unlimited release of personally identifiable information (“PII”) from a student’s education record.

So, what is a health or safety emergency? This is not actually defined in the statute.  Rather, a school district must make a case-by-case determination taking into account the totality of the circumstances pertaining to the threat to the health or safety of a student or others.  The U.S. Department of Education will generally defer to the decisions of school officials in an emergency as long as the official can explain the basis for his or her determination, based on the available information at the time, that there was an articulable and significant threat at the time in question.  34 CFR §99.36(c).

And, to whom may PII be released in a health or safety emergency? Generally, it only may be released to someone whose knowledge of such information is necessary to protect the health or safety of the student or other persons.  This might include local or state law enforcement officials, public health officials, doctors or other medical personnel and parents.  Be aware, however, that this exception to confidentiality of student records only applies during the period of the emergency.

FERPA also allows the school officials at one district to release information concerning disciplinary action taken against a student who has been disciplined for conduct that posed a significant risk to the safety or wellbeing of that student, other students, or other members of the school community, to school officials at another school. Such disclosure, however, only can be made if it is determined that the other school has a legitimate educational interest in the behavior of the student.  34 CFR §99.36(b)(3).  For example, if a student who was disciplined for bringing a weapon into school had made threats against staff or students at another school, the first school could inform the officials at the second school of the threat.  Please note:  in addition to the health or safety emergency exception, school officials can share such information with another school when a student transfers to or enrolls in that school.

And do not forget the requirement that you record who accessed a student’s education records. It applies even in an emergency situation.  In fact, you need to be aware that the recordkeeping requirements for disclosures under the health or safety emergency exception are different than the normal recordkeeping requirements.  In this situation you must record the articulable and significant threat that formed the basis for the disclosure as well as the persons to whom the information was disclosed.  34 CFR §99.32(a)(5).

While we urge clients to comply with all requirements of FERPA, we understand that schools may have to make prompt decisions in emergent circumstances, and the potential liability under FERPA for “improperly” sharing information in an emergency situation may pale when compared to a greater potential imminent harm or threat that is being faced. Schools just need to be able in good faith to explain their belief that there was an articulable and significant threat at the time in question and ensure that they have recorded the proper information after the fact.