Frequently Asked Questions

This section is designed to allow stakeholders easy access to all Frequently Asked Questions about student privacy.  All of the questions contained on this page have been tagged for easy browsing by either topic or audience.  This section is regularly updated as new questions are received.  You may also search the FAQs by using the search box on the top right of the page.

Does FERPA distinguish between School Resource Officers (SROs) and other local police officers who work in a school?

No. An SRO typically serves as an on-site law enforcement officer and as a liaison with the local police or sheriff’s department.  An SRO also works with teachers and school administrators to promote school safety and to help ensure physical security.  An SRO may be designated by the school as a “law enforcement unit” official under FERPA (§ 99.8).  However, in order for a school to disclose personally identifiable information (PII) from education records to an SRO, the SRO must be considered a “school official” under FERPA in accordance with § 99.31(a)(1)(i)(B) concerning outsourcing.  A school may only non-consensually disclose PII from students’ education records to its law enforcement unit if those individuals in the law enforcement unit meet the requirements set forth in FERPA’s school official exception or if some other FERPA exception to the general consent rule applies. 

A school must have direct control over an SRO’s maintenance and use of education records in providing SRO services in order for the SRO to be considered a school official.  Further, under the school official exception (as well as any FERPA exception to consent), SROs may only use the PII from education records for the purposes for which the disclosure was made, e.g., to promote school safety and the physical security of the students.  See §§ 99.31(a)(1)(i)(B)(3) and 99.33(a)(2).  In addition, SROs are subject to the redisclosure requirements of § 99.33(a).  This means that an SRO who is serving as a “school official” under FERPA may not disclose PII from education records to others, including other employees of his or her local police department who are not acting as school officials, without consent unless the redisclosure fits within one of the exceptions to FERPA’s consent requirement.

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 permit school officials to release information that they personally observed or of which they have personal knowledge?

FERPA applies to the disclosure of education records and of personally identifiable information (PII) from education records that are maintained by the school.  Therefore, FERPA does not prohibit a school official from releasing information about a student that was obtained through the school official’s personal knowledge or observation, rather than from the student’s education records.  For example, if a teacher overhears a student making threatening remarks to other students, FERPA does not protect that information from disclosure.  Therefore, a school official may disclose what he or she overheard to appropriate authorities, including disclosing the information to local law enforcement officials, school officials, and parents.

Does FERPA permit schools to disclose any and all education records on a student to another school where the student seeks or intends to enroll?

Yes.  FERPA states a school may disclose education records, without parental consent (§ 99.31(a)(2)), to another school in which a student seeks or intends to enroll, subject to conditions set forth in § 99.34.  This exception to FERPA’s general consent requirement also permits a school to disclose education records when a student is being placed in a juvenile justice facility that is considered a school. 

Does FERPA permit the disclosure of personally identifiable information (PII) from education records to officials of a state’s juvenile justice system?

FERPA permits schools to non-consensually disclose PII from education records to state and local officials or other authorities if the disclosure is allowed by a state law adopted after November 19, 1974, and if the disclosure concerns the juvenile justice system and its ability to serve, prior to adjudication, the student whose records are disclosed.  See §§ 99.31(a)(5) and 99.38.  The officials and authorities to whom such information is disclosed must certify in writing to the school that the information will not be provided to any other party, except as provided for under state law without written consent.  

Does FERPA permit the sharing of education records with outside law enforcement officials, mental health officials, and other experts in the community who serve on a school’s threat assessment team?

Yes.  Under FERPA, a school or school district may disclose personally identifiable information (PII) from education records without consent to threat assessment team members who are not employees of the school or school district if they qualify as “school officials” with “legitimate educational interests.”

In establishing a threat assessment team, the school must follow the FERPA provisions in § 99.31(a)(1)(i)(B) concerning outsourcing this function if team members will be privy to PII from students’ education records.  While not a requirement of FERPA, one way to ensure that members of the team do not redisclose PII obtained from education records would be to have a written agreement with each of the team members specifying their requirements and responsibilities. 

Schools are reminded that members of the threat assessment team may only use PII from education records for the purposes for which the disclosure was made, i.e., to conduct threat assessments, and must be subject to FERPA’s redisclosure requirements in § 99.33(a).  For example, a representative from the city police who serves on a school’s threat assessment team generally could not give the police department any PII from a student’s education records to which he or she was privy as a member of the team.  However, if the threat assessment team determines that a health or safety emergency exists, then the police officer may disclose, on behalf of the school, PII from a student’s education records to appropriate officials under the health or safety emergency exception under §§ 99.31(a)(10) and 99.36, as discussed below.

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.

FAQs on Photos and 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]

Directly Related to a Student:

FERPA regulations do not define what it means for a record to be “directly related” to a student. In the context of photos and videos, determining if a visual representation of a student is directly related to a student (rather than just incidentally related to him or her) is often context-specific, and educational agencies and institutions should examine certain types of photos and videos on a case by case basis to determine if they directly relate to any of the students depicted therein. Among the factors that may help determine if a photo or video should be considered “directly related” to a student are the following:

  • The educational agency or institution uses the photo or video for disciplinary action (or other official purposes) involving the student (including the victim of any such disciplinary incident);
  • The photo or video contains a depiction of an activity:
    • that resulted in an educational agency or institution’s use of the photo or video for disciplinary action (or other official purposes) involving a student (or, if disciplinary action is pending or has not yet been taken, that would reasonably result in use of the photo or video for disciplinary action involving a student);
    • that shows a student in violation of local, state, or federal law;  
    • that shows a student getting injured, attacked, victimized, ill, or having a health emergency;
  • The person or entity taking the photo or video intends to make a specific student the focus of the photo or video (e.g., ID photos, or a recording of a student presentation); or
  • The audio or visual content of the photo or video otherwise contains personally identifiable information contained in a student’s education record.

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.

Examples of situations that may cause a video to be an education record:

  • A school surveillance video showing two students fighting in a hallway, used as part of a disciplinary action, is directly related to the students fighting.   
  • A classroom video that shows a student having a seizure is directly related to that student because the depicted health emergency becomes the focus of the video. 
  • If a school maintains a close-up photo of two or three students playing basketball with a general view of student spectators in the background, the photo is directly related to the basketball players because they are the focus of the photo, but it is not directly related to the students pictured in the background. Schools often designate photos or videos of students participating in public events (e.g., sporting events, concerts, theater performances, etc.) as directory information and/or obtain consent from the parents or eligible students to publicly disclose photos or videos from these events.
  • A video recording of a faculty meeting during which a specific student’s grades are being discussed is directly related to that student because the discussion contains PII from the student’s education record.

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 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, 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)

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.