Spotlight on the Family Educational Rights and Privacy Act
THE WHAT, WHERE, WHY AND WHOM OF FERPA

What is FERPA?

The Family Educational Rights and Privacy Act (FERPA) is federal law initially enacted in 1974. The act seeks to protect the privacy interests of parents and students in education records by giving parents the right to:

• review their children's educational records
• request amendment of the records
• prohibit the disclosure from records of personally identifiable information in certain circumstances.

Where do I find FERPA?

The text of the Family Educational Rights and Privacy Act can be found at 20 U.S.C. S1232g. See www.law.cornell.edu/uscode. Supporting regulations (dated 11/21/96) are at 34 CFR Part 99. See http://www.ed.gov/(select "money matters" then, "Federal Register Documents").

Why do I need to know about FERPA?

Prosecutors must work together with educators to maintain school and community safety. However, many prosecutors have likely encountered obstacles to the information sharing process. Educators know about, but may not fully understand, the Family Educational Rights and Privacy Act.

Although FERPA appears to restrict interagency information sharing (by protecting the privacy of education records), the statute actually permits, through exceptions, limited disclosure of student records for legitimate educational and law enforcement purposes. In order to explain the statutory exceptions to educators and gain access to critical information, prosecutors must have a clear understanding o the exceptions.

To whom and to what does FERPA apply?

The provisions of FERPA apply to all educational agencies and institutions that receive funds under any Secretary of Education Program, including:

• every public elementary and secondary school
• most post-secondary institutions
• but generally not private and parochial schools at the elementary and secondary level.

All education records come under FERPA's reach. These include all records, files, documents and other materials, such as films, tapes or photographs that contain information directly related to a student maintained by an education agency or institution (or a party acting for the agency or institution).

For example, education records include:

• information about students contained in report cards, surveys, health unit records, correspondence between school and other entity
• information maintained by a school about parents.

Some information is not subject to FERPA's restrictions, but may be governed by state laws. That information includes:

• oral information based on personal observation or knowledge, as long as the information does not rely upon the contents of an education records
• anonymous crime statistics, e.g. crimes committed on a college campus

What do I need to know about FERPA?

You may again be asking yourself how FERPA can aid prosecutors, since what you have read so far may indicate that the act restricts information sharing. Prosecutors find relief, however, in the statutory exceptions to FERPA, which permit record disclosure without prior parental disclosure in certain circumstances. Though the number of exceptions are many, those relevant to prosecutors include:

The Juvenile Justice System Exception permits disclosure without prior parental consent of school education records to state and local officials or authorities pursuant to a state statute, so long as the disclosure concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are being released. Se 34 CFR Part 99.31(a)(5) and 99.38. (In other words, your state law controls whether the disclosure is permissible.)

Before receiving the records, state or local officials must first certify in writing that the records will not be disclosed to a third party, other than another juvenile justice agency. Each school district defines whether the information sought concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are being released.

The Judicial Order or Lawfully Issued Subpoena Exception requires schools to make a reasonable effort to notify the parent in advance of compliance with the order or subpoena unless the subpoena is issued for a law enforcement purpose and the court has ordered the school not to disclose the existence of the subpoena. See 34 CFR Part 99.31(a)(9).

The Health or Safety Emergency Exception permits disclosure of school education records when the information is immediately needed to protect the health or safety of the student or other individual. This exception is narrowly interpreted. See 34 CFR Part 99.31(a)(10).

The Law Enforcement Unit Exception permits disclosure of records that a law enforcement unit of a school or school district creates and maintains for a law enforcement purpose. Such records do not constitute "education records" and are not, therefore, subject to the FERPA parental consent prerequisite to disclosure. See 34 CFR Part 99.3 and 99.8.

The law enforcement unit may be an individual, office, department, division or other component of a school or school district that is officially authorized or designated by the school district to (1) enforce any federal, state, or local law, or (2) maintain the physical security and safety of schools in the district.

Though the copy of a law enforcement unit record given to a school official becomes a protected education record, the original record created and maintained by the law enforcement unit remains disclosable.

The Directory Information Exception permits disclosure of student directory information. The school district must first establish a policy and give notice to parents of what information they intend to disclose and of the parents' right to refuse consent. See 34 CFR Part 99.37.

Where can I find out more about FERPA?

Read: Sharing Information: A Guide to the Family Educational Rights and Privacy Act and Participation in Juvenile Justice Programs, joint publication by U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, and U.S. Department of Education, Family Policy Compliance Office, June 1997. To order a free copy, contact OJJDP by phone, 800-638-8736, or via the web, askncjrs@ncjrs.org. Request publication NCJ 163705.

Attribution note: This article is adapted from the above-cited publication. Thanks to authors Michael Medaris, Ellen Campbell and Bernard James for their explanation of the statute and regulations.

Attend: the 25th National Conference on Juvenile Justice in Orlando, Florida, where a prosecutor seminar is scheduled to explain the complexities of FERPA and answer your practical questions. See page one of this newsletter for registration information.

UPDATE ON APRI STAFF

The Juvenile Justice Prosecution Program at the American Prosecutors Research Institute (APRI) has a new senior attorney (Nancy Baumgartner) and staff attorney (Elena Tompkins). Ms. Baumgartner was chief of the Juvenile Division, Frederick County (MD) State's Attorney's Office from January 1994 to October 1997. Ms. Tompkins was a juvenile court prosecutor in Monmouth County, NJ from April 1996 until beginning employment at APRI in November 1997. Both are experienced prosecutors with the skills and resources to answer your technical assistance questions. Do you want to know about the programs and policies in other jurisdictions? Would you like to learn about how effective treatment programs can be used as alternatives to prosecution? Do you want statistics and research to support your opinions on what is happening in juvenile justice and why? Do you want to access the most recent publications on subjects that directly affect how you prosecute juveniles? If so, write, call, FAX or e-mail APRI's Juvenile Justice Prosecution Program. Also, please contact us if you would like to change, correct or add a name to our mailing list.

American Prosecutors Research Institute (APRI)
Juvenile Justice Prosecution Program
99 Canal Center Plaza, Suite 510
Alexandria, VA 22314
703-519-1673 (Elena Tompkins)
703-518-4386 (Nancy Baumgartner)
FAX: 703-836-3195

Visit our website: www.ndaa-apri.org or e-mail: juvenilejustice@ndaa-apri.org

CONGRESSIONAL APPROPRIATION FOR JUVENILE JUSTICE PROGRAMS

Congress recently passed the Department of Justice budget for the 1998 fiscal year (October 1, 1997 to September 30, 1998). It includes an appropriation of $250 million for "Juvenile Accountability Block Grants" of which $112 million is for local prosecutors, juvenile judges, public defenders and probation offices to fight juvenile crime.

As more details of the prosecutor-accessible grant money become available, we will make the information available to you via newsletter or our website www.ndaa-apri.org. The money is in addition to the Juvenile Justice and Delinquency Prevention Act formula grant program (for which funds were also appropriated.) What we know now is that the money can be used for:

• hiring additional prosecutors to reduce backlogs and enable the prosecution of more cases involving violent juvenile offenders;
• funding prosecutors to address drug, gang and youth violence more effectively;
• technology, equipment and training for prosecutors involved in the prosecution of violent juvenile offenders;
• hiring additional juvenile judges, probation officers, and court-appointed defenders and funding pre-trial services for juveniles, to ensure the smooth and expeditious administration of justice;
• establishing court-based juvenile justice programs that target firearm law offenders through the establishment of juvenile firearms courts;
• establishing drug court programs for juvenile offenders.

IN OUR NEXT ISSUE - JUVENILE DRUG COURTS

What is the rationale behind creating drug courts? What kinds of programs are in existence? What types of jurisdictions have them? Are drug courts effective? In order to make this newsletter more interactive, we encourage you to contact us. Tell us what programs are working, what programs are not and why. We want to hear from you. Does your jurisdiction have a difficult and perplexing problem? Another jurisdiction may already have the answer. Contact us and we will publish your question and answers from other jurisdictions in subsequent newsletters.

JUVENILE JUSTICE RESEARCH COMPENDIUM

APRI is compiling a nationwide compendium of juvenile justice programs in a computer database. If your jurisdiction has a juvenile justice program, send APRI a synopsis of the program so we can include it in the compendium. We also seek copies of law review articles, research findings and new reports that address juvenile justice issues.