This article first published July 29, 2020, and has been updated to include additional information and examples.

The Family Educational Rights and Privacy Act (FERPA) protects confidentiality of students’ education records and their rights to full access to those records, to include the right to review and respect the records.

Pursuant to §300.613:

(a) Each participating agency must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency must comply with a request without unnecessary delay and before any meeting regarding an IEP, or any hearing pursuant to §300.507 or §§300.530 through 300.532, or resolution session pursuant to §300.510, and in no case more than 45 days after the request has been made.

(b) The right to inspect and review education records under this section includes—

(1) The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records;

(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and

(3) The right to have a representative of the parent inspect and review the records.

(c) An agency may presume that the parent has authority to inspect and review records relating to his or her child unless the agency has been advised that the parent does not have the authority under applicable State law governing such matters as guardianship, separation, and divorce.

Why Make a FERPA Request?

Maybe you are concerned about your daughter’s reading and want to review assessments administered by the school to help identify gaps in learning, if there is a downward trend, and/or the to help identify a track forward to help your daughter.

Perhaps there was a confidentiality breach, and you want a record of individuals who have accessed your son’s records. 

Maybe your child is being bullied by a teacher or your child is accused of taking negative actions herself, so you want to obtain all communications between the student and her teachers.

Then there are the requests that tend to be related to complaints and due process. Perhaps your child was given a program and you expressed concerns all school year about the program, only to have your child regress after receiving the program for an entire year. You might want to obtain all assessments related to the program, emails between teachers, and so on, in an effort to obtain compensatory education for your child.

There’s also just the fact that computer systems crash, people lose paperwork, and so on. In the world of special education, it’s just a good thing to have everything related to your child in your hands (preferably in organized files).

What Is An Education Record?

Before you submit your FERPA request, it is important to know the definition of “education record”, which will help inform the scope of your request.

Pursuant to §1232g(a)(4):

The term ‘‘education records’’ means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which—
(i) contain information directly related to a student; and

(ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.
(B) The term ‘‘education records’’ does not include—
(i) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute;
(ii) records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement;
(iii) in the case of persons who are employed by an educational agency or institution but who are not in attendance at such agency or institution, records made and maintained in the normal course of business which relate exclusively to such person in that person’s capacity as an employee and are not available for use for any other purpose; or
(iv) records on a student who is eighteen years of age or older, or is attending an institution of postsecondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student’s choice.

Pursuant to Individuals with Disabilities Education Act, §300.611(b):

As used in §§300.611 through 300.625—

(b) Education records means the type of records covered under the definition of “education records” in 34 CFR part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (FERPA)).

You’ll find a definition within your state’s code, too. For example, in Virginia, pursuant to Virginia Code § 22.1-289:

“Scholastic records” means those records containing information directly related to a student or an applicant for admission and maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution.

Also from Virginia, pursuant to 8VAC20-81-10:

“Education record” means those records that are directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution. The term also has the same meaning as “scholastic record.” In addition to written records, this also includes electronic exchanges between school personnel and parent regarding matters associated with the child’s educational program (e.g., scheduling of meetings or notices). This term also includes the type of records covered under the definition of “education record” in the regulations implementing the Family Education Rights and Privacy Act. (20 USC § 1232g(a)(3); § 22.1-289 of the Code of Virginia; 34 CFR 300.611(b))

When it comes to definitions, case law comes into play, too.

In 2021, I filed a state complaint with Virginia Department of Education (VDOE), related to Fairfax County Public Schools’ repeat failures to maintain privacy of education records. Earlier that year, FCPS released legal invoices in response to a FOIA request, but neglected to redact personally identifiable information.

VDOE found that the legal invoices are student records. The following is its reasoning behind this finding:

● In the past twenty years, much litigation in this area has focused on defining the scope of records covered by the statute. The upshot of these cases is that not every document that contains PII is “maintained” within the meaning of the statute, and accordingly, not every document containing PII is an education record subject to its protections.

● FERPA clearly does not require that any particular documents be maintained in a student’s education record. Specifically, the Family Policy Compliance Office (FPCO), U.S. Department of Education, has advised:
o “Under FERPA, a school is not generally required to maintain particular education records or education records that contain specific information [emphasis added]. Rather, a school is required
to provide certain privacy protections for those education records that it does maintain.”
o “Under FERPA, a school is not required to provide information that is not maintained or to create education records in response to a parent’s request.”

● Litigation in this area has further focused on whether documents directly related to a student that exist incidentally are “maintained” by the school division. In 2002, the U.S. Supreme Court specifically examined whether student-specific information had been “maintained”—thus constituting an “education record”—in Owasso Public Schools v. Falvo. In this case, the Court ruled that peer-graded papers had yet to be “maintained” by the school, and, accordingly, did not constitute education records. The Court opined:
The word “maintain” suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled.

● Subsequent judicial rulings further refine the issue of “maintaining” records—specifically, email correspondence. Citing Owasso, a California federal district court focused on the two-pronged definition of “education record” in S.A. v. Tulare Co. Office of Educ. and Calif. Dept. of Educ. The court found that:
an email is an education record only if it both contains information related to the student and is maintained by the educational agency. Conversely, an email that is not maintained by the educational
agency is not an education record [emphasis added].

The court specifically rejected the student’s argument that the school division “maintained” emails electronically “in inboxes and [its] server….” The court stated:

Emails, like assignments passed through the hands of students, have a fleeting nature. An email may be sent, received, read, and deleted within moments. As such, Student’s assertion–that all emails that
identify Student, whether in individual inboxes or the retrievable electronic database, are maintained “in the same way the registrar maintains a student’s folder in a permanent file”–is “fanciful.” Owasso, 534 U.S. at 433. Like individual assignments that are handled by many student graders, emails may appear in the inboxes of many individuals at the educational institution. FERPA does not contemplate that education records are maintained in numerous places.

● In 2017, a federal district court in Pennsylvania relied on Owasso and Tulare in addressing whether e-mails [discussing a student’s potential retention in first grade], in fact, are “education records” as envisioned by the interlocking statutory schemes at issue here.… Unless [LEA] kept copies of e-mails related to [student] as part of its record filing system with the intention of maintaining them, we cannot reach the conclusion that every e-mail which mentions [student] is a bona fide education record within the statutory definition. These e-mails appear to be casual discussions, not records maintained by [LEA]. Since these e-mails do not qualify as education records to which Plaintiffs are guaranteed a right of access, there was no violation of their procedural rights….

● While these cases stand for the proposition that not every document that contains a student’s name constitutes an education record, the question presented in the instant case is different. Here, the documents disclosed clearly contained some PII, and the LEA does not directly argue that they were not “maintained”. In fact, the documents have presumably been maintained by the LEA as financial or accounting records. Rather, the LEA urges that the records are not of the type that could be “easily identified as part of an education record” and thus are not subject to FERPA. Because the question is fundamentally different, the case law cited above sheds some light on the issue, but is not dispositive.
Logically, persuasive arguments can be made for and against the school division’s position.

● While we do not believe, in light of applicable case law, that a document must be kept in a physical or electronic file labeled with the student’s name to be an electronic record, we do agree that there is some logic to categorizing financial records separately from student records. In fact, the sole reference to financial records contained in FERPA is limited to “student financial records (at the post-secondary level),” a logical inclusion in that post-secondary education, unlike public elementary and secondary education, generally requires the payment of tuition. The limitation, however, is telling, in that it does not suggest that other financial records such as a student’s cafeteria account would be a typical education record.

● On the other hand, we note that billing records such as these are related to event(s) that occurred in connection with the student’s educational services. We would expect to see substantive information related to a due process hearing, a disciplinary appeal or a suit otherwise arising from the relationship between the student and the school division in the student’s educational record. Should the school division’s decision about whether to put a copy of the bill in the file as well as in the accounting office drive whether the document, clearly containing PII and clearly maintained by the school division, is subject to FERPA protections?

● The LEA has not cited any legal authority to support its position, nor have we identified any authority shedding further light on this matter. As a result, we have no supporting authority to cause us to depart from the tried and true construct. Thus, we must conclude that the documents contain PII and are maintained by the school division, therefore they are education records under FERPA and this matter is within our jurisdiction.

Who is Your Contact?

You can submit a FERPA request to anyone in the school system, but you’ll streamline the process by going to the office that handles the request, rather than submitting the request to a teacher or principal, who will then forward along your request.

Search for FERPA officer on your school’s site. If you hit a wall, look up FOIA officer, and then go to that contact and ask if he or she handles FERPA requests, too.

In Fairfax County Public School’s (FCPS) case, FOIA officer Molly Shannon fields FERPA requests, too. Her email address is mshannon@fcps.edu and her phone number is 571.253.4823.

The Request:

There is no form required. If you are advised that you must use a specific form and/or follow a specific format, ask that the specific law requiring these items be cited.

Start your request with, “This is a FERPA request”. 

Next up is your request. 

What do you want? 

Example 1: 

Please provide me all formal and informal evaluations, related to [insert your child’s name here], from the periods of 2016-2020. 

Example 2:

Please provide me all emails, text messages, voice mail messages, letters, reports, and all other files in any print and digital formats that have not already been mentioned, which are related to [insert your child’s name here], and which cover the years 2016-2020. Please include [insert teacher’s, principal’s, etc name here] in the search.

Fees:

Sec. 300.617 of IDEA states:

(a) Each participating agency may charge a fee for copies of records that are made for parents under this part if the fee does not effectively prevent the parents from exercising their right to inspect and review those records.

(b) A participating agency may not charge a fee to search for or to retrieve information under this part.

When I did my first request, I made the mistake of stating it was a FOIA request. FCPS charged me for the request under FOIA, even though I was asking for access to information related to my own child—and I paid. Lesson learned . . .  

If you are presented with a charge for anything other than copies, ask the FOIA officer why you are being charged and request federal and/or state regulations that support the fees. If your school says there is a fee for a thumb drive or a disk on which they want to put the files, tell them you’ll provide your own to them—or ask for a receipt if the fee seems too high. If they want to charge you for shipping, offer to pick up the files. If their photocopy fees are high, consider downloading the Scanner Pro app for your phone and go to the school and scan every file right there. (Side note: I’ve been using Scanner Pro for years. It comes in especially handy in IEP meetings, where members sometimes have documents to which I’ve not been given access. I ask to see it and scan it right there. I’ve used it for work to scan in receipts, at home for scanning in doctor’s notes for school, and so on. Just a great resource period.)

Response Time

There is a maximum 45 day turnaround. If you don’t receive a response within 45 days, cite Sec. 300.613 of IDEA, which states:

(a) Each participating agency must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency must comply with a request without unnecessary delay and before any meeting regarding an IEP, or any hearing pursuant to §300.507 or §§300.530 through 300.532, or resolution session pursuant to §300.510, and in no case more than 45 days after the request has been made.

If you don’t hear back, follow-up, follow-up, and follow-up again.