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Limitations and Analysis of FERPA Policies within Florida Public School Districts

Permanent Link: http://ufdc.ufl.edu/UFE0044427/00001

Material Information

Title: Limitations and Analysis of FERPA Policies within Florida Public School Districts
Physical Description: 1 online resource (153 p.)
Language: english
Creator: Rogers, Sheryl Dale
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2012

Subjects

Subjects / Keywords: district -- ferpa -- policy -- quota -- records -- student
Human Development and Organizational Studies in Education -- Dissertations, Academic -- UF
Genre: Educational Leadership thesis, Ed.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: The study was a policy analysis of student records policies within Florida public K-12 school districts. The researcher gathered all student records policies for the sixty-seven school districts.  In addition, traditional legal research was used involving applicable federal acts, state statutes, case law, as well as legal and educational literature. The study was two-pronged.  The first goal was to determine if Florida public school K-12 school district policies were aligned to the Federal Educational Rights and Privacy Act (FERPA) as well as Florida State Statute 1002.22.  The second goal was to develop a model policy that unambiguously met all components of both FERPA and Florida State Statute 1002.22. The policy analysis showed that none of the sixty-seven school districts had a policy that met all components of both FERPA and Florida State Statute 1002.22. Over 60 percent of all Florida public school districts did not even meet half of the components within both acts.  These results demonstrated a need for a policy that was aligned to federal acts, state statutes, and case law. Based upon this analysis, a model policy was developed in order to adequately protect Florida public K-12 school districts from expensive potential litigation regarding student records and adherence to FERPA and Florida State Statute 1002.22. This model policy addresses all components of FERPA and Florida State Statute 1002.22 and takes into account federal and state case law.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Sheryl Dale Rogers.
Thesis: Thesis (Ed.D.)--University of Florida, 2012.
Local: Adviser: Wood, R. Craig.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2012
System ID: UFE0044427:00001

Permanent Link: http://ufdc.ufl.edu/UFE0044427/00001

Material Information

Title: Limitations and Analysis of FERPA Policies within Florida Public School Districts
Physical Description: 1 online resource (153 p.)
Language: english
Creator: Rogers, Sheryl Dale
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2012

Subjects

Subjects / Keywords: district -- ferpa -- policy -- quota -- records -- student
Human Development and Organizational Studies in Education -- Dissertations, Academic -- UF
Genre: Educational Leadership thesis, Ed.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: The study was a policy analysis of student records policies within Florida public K-12 school districts. The researcher gathered all student records policies for the sixty-seven school districts.  In addition, traditional legal research was used involving applicable federal acts, state statutes, case law, as well as legal and educational literature. The study was two-pronged.  The first goal was to determine if Florida public school K-12 school district policies were aligned to the Federal Educational Rights and Privacy Act (FERPA) as well as Florida State Statute 1002.22.  The second goal was to develop a model policy that unambiguously met all components of both FERPA and Florida State Statute 1002.22. The policy analysis showed that none of the sixty-seven school districts had a policy that met all components of both FERPA and Florida State Statute 1002.22. Over 60 percent of all Florida public school districts did not even meet half of the components within both acts.  These results demonstrated a need for a policy that was aligned to federal acts, state statutes, and case law. Based upon this analysis, a model policy was developed in order to adequately protect Florida public K-12 school districts from expensive potential litigation regarding student records and adherence to FERPA and Florida State Statute 1002.22. This model policy addresses all components of FERPA and Florida State Statute 1002.22 and takes into account federal and state case law.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Sheryl Dale Rogers.
Thesis: Thesis (Ed.D.)--University of Florida, 2012.
Local: Adviser: Wood, R. Craig.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2012
System ID: UFE0044427:00001


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` 1 LIMITATIONS AND ANALYSIS OF FERPA POLICIES WITH IN FLORIDA PUBLIC SCHOOL DISTRICTS By SHERYL D. ROGERS A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF EDUCATION UNIVERSITY OF FLORIDA 2012

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` 2 2012 Sheryl D. Rogers

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` 3 To my family and friends, for their consta nt motivation and encouragement

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` 4 ACKNOWLEDGMENTS I could not have completed such a momentous undertaking without the motivation and encouragement from a supportive group of faculty, friends, and family. First, I would like to thank Dr. R. Craig Wood, who provided me with the guidance necessary to structu re my work in the best way possible. Though we were not close in proximity, Dr. Wood was always supportive and provided me with quick responses and superbly expert advice. Dr. Bruce Mousa also provided me with local support and guidance. He, too, was exceptional ly responsive and helpful. I would also like to thank the other members of my committee Dr. Linda Eldridge, and Dr. Jean Crockett for giving me their valuable time during this process. In addition, I would like to thank Angela Rowe who provide d our long distance cohort with invaluable resources and direction. Throughout the entire cohort experience, I was able to learn from the members of our group and hone my practice as an educator in the process. I would specifically like to thank Dr. Fra ncine Eufemia, Dr. Anna Brown, and Dr. Allison Foster who were the best table mates I could ask for nine times per year for three years. These women not only are a continued inspiration, but provided me with the motivation to complete this process when I felt my motivation lacking. Though not in my cohort, my friend Dr. Carol Ann Falkenberg continued to encourage me, provide advice, and commiserate with me, when necessary. Carol has a fascinating history, is an educator with a wealth of knowledge, and, I am proud to say, a great friend. She remains the only person whom I have ever met to have a Ph.D. as well as an Ed.D. Ms. Cherise Brummer selflessly I would especially like to thank my family. First, I thank my parents/step parents, Milt Rogers, Linda Short, and Sheryl Rogers for providing me with ambition and a will to complete tasks that I have begun. I would like to thank my children, Kayleigh and Connor Saalfield, for

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` 5 making me a better person who is able to distinguish the trees from the forest. Finally, I would like to thank Mike for his patience and understanding throughout the past few years. His love and support were critical reasons that I w as able to finish this massive undertaking.

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` 6 TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ ............... 4 LIST OF TABLES ................................ ................................ ................................ ........................... 9 DEFINITION OF TERMS ................................ ................................ ................................ ............ 10 ABSTRACT ................................ ................................ ................................ ................................ ... 15 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ .................. 17 Response of Educational Institutions to FERPA/Buckley Amendment ................................ 18 Justification of the Study ................................ ................................ ................................ ........ 28 Method of the Study ................................ ................................ ................................ ............... 29 Definition of Terms ................................ ................................ ................................ ................ 29 Limitations of the Study ................................ ................................ ................................ ......... 30 Organization of the Study ................................ ................................ ................................ ....... 30 Chapter Summary ................................ ................................ ................................ ................... 31 2 LITERATURE REVIEW ................................ ................................ ................................ ....... 32 FERPA Federal Legislation ................................ ................................ ................................ .... 32 S History ................................ ................................ ................................ ............ 32 Right to Protect Individual Privacy (Personally Identifiable Educational Records Confidential) ................................ ................................ ................................ ................ 34 Right to Access Records ................................ ................................ ................................ .. 35 Right to Challenge and Correct Inaccuracies (Establish Fair Information Practices) ..... 35 Directory Information ................................ ................................ ................................ ...... 36 Exceptions to FERPA ................................ ................................ ................................ ...... 37 Remedies ................................ ................................ ................................ ......................... 39 Florida Statute 1002.22: Education Records and Reports of K 12 Students .......................... 40 Florida Statute 1002.22 History ................................ ................................ ...................... 40 Rights within the Statute (Mirroring FERPA) ................................ ................................ 41 Remedies ................................ ................................ ................................ ......................... 43 FERPA Case Law ................................ ................................ ................................ ................... 43 Gonzaga University v. Doe ................................ ................................ ............................. 43 Owasso Independent School District v. Falvo ................................ ................................ 44 United States v. Miami University and Ohio State University ................................ ....... 44 Florida Statute 1002.22 (formerly 228.093) Case Law ................................ .......................... 47 WFTV, Inc. v. School Bd. of Seminole ................................ ................................ .......... 47 Human Rights Advocacy Committee for Developmental Services for District VIII v. Lee County School Board ................................ ................................ ............................ 47 F.A.T. v. State of Florida ................................ ................................ ................................ 48

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` 7 Florid a Department of Education v. Cooper ................................ ................................ ... 49 Johnson v. Deluz ................................ ................................ ................................ ............. 49 Summary of Florida Case Law ................................ ................................ ........................ 49 Legal Literature ................................ ................................ ................................ ...................... 50 Educational Lite rature ................................ ................................ ................................ ............ 53 Chapter Summary ................................ ................................ ................................ ................... 55 3 POLICY CONTENT ................................ ................................ ................................ .............. 56 Methodology ................................ ................................ ................................ ........................... 56 Policy Components ................................ ................................ ................................ ................. 57 The Right to Challenge Inaccuracies ................................ ................................ ...................... 57 The Right to Access Records Parents and Eligible Students ................................ ............... 58 The Right to Consent to Release Records to Third Parties ................................ .................... 58 The Right to File a Complaint with the Family Policy Compliance Office ........................... 58 Annual Written Notice ................................ ................................ ................................ ............ 59 Timely Acces s ................................ ................................ ................................ ........................ 59 Exercising Waiver of Rights ................................ ................................ ................................ ... 60 Schedule of Fees/Charge for Copies ................................ ................................ ....................... 60 Listing Types/Locations of Records/Titles and Addresses of Record Officials ..................... 61 Disclosure Prior Written Consent Not Required ................................ ................................ 61 Disclosure Prior Written Consent Required ................................ ................................ ........ 62 Maintenance and Security of Records ................................ ................................ .................... 63 Health/Safety Emergencies ................................ ................................ ................................ ..... 63 Directory Information ................................ ................................ ................................ ............. 64 Periodic Review/Elimination ................................ ................................ ................................ .. 64 Chapter Summary ................................ ................................ ................................ ................... 65 4 ANALYSIS OF FL ORIDA PUBLIC K 12 SCHOOL DISTRICT STUDENT RECORDS POLICIES ................................ ................................ ................................ ............................... 82 Analysis of Case Law Regarding FERPA ................................ ................................ .............. 82 Analysis of Florida Case Public K 12 School Districts Student Records Policies ................. 84 Conclusions ................................ ................................ ................................ ............................. 87 Chapter Summary ................................ ................................ ................................ ................... 88 5 A MODEL STUDENT RECORDS POLICY FOR FLORIDA PUBLIC K 12 SCHOOL DISTRICTS ................................ ................................ ................................ ............................ 89 Introduction ................................ ................................ ................................ ............................. 89 Demand for Component s Embedded within Federal Act and State Statute ........................... 89 Model Policy ................................ ................................ ................................ ........................... 90 Information not within Policy ................................ ................................ ................................ 93 Chapter Summary ................................ ................................ ................................ ................... 94 Recommendations for Further Study ................................ ................................ ...................... 94

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` 8 APPENDIX A FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT ................................ ............... 96 B UNITED STATES CODE OF FEDERAL REGULATIONS ................................ .............. 102 C FLORIDA STATUTES ................................ ................................ ................................ ........ 138 D FLORIDA ADMINISTRATIVE CODE ................................ ................................ .............. 145 LIST OF REFERENCES ................................ ................................ ................................ ............. 148 BIOGRAPHICAL SKETCH ................................ ................................ ................................ ....... 153

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` 9 LIST OF TABLES Table page 3 1 List of districts that included provisions for challenging inaccuracies of information contained within a student record ................................ ................................ ...................... 67 3 2 List of districts that included provision for accessing information contained within a student record ................................ ................................ ................................ ..................... 68 3 3 List of districts that included provision for consent to release records to third parties .... 69 3 4 List of districts that included provision to file a complaint with the FPCO ..................... 70 3 5 List of districts that included provision for annual written notice ................................ .... 70 3 6 List of districts that included provision for timely access ................................ ................ 71 3 7 List of districts that included provision for waiver of righ ts ................................ ............ 72 3 8 List of districts that included schedule of fees ................................ ................................ .. 72 3 9 List of districts that list types of records, officials, titles and addresses ........................... 73 3 10 List of districts that detail the situations when prior written consent not required ........... 73 3 11 List of districts that detail the situations when prior written consent required ................. 74 3 12 List of districts that detail maintenance and supervision of records ................................ 75 3 13 List of districts that include provision for health/safety emergencies .............................. 76 3 14 List of districts that include provision for directory information ................................ ..... 77 3 15 List of districts that include provision for review/elimination ................................ .......... 78 3 16 Summary Table ................................ ................................ ................................ ................. 79

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` 10 DEFINITION OF TERMS Access The right to obtain information about and to inspect educational records. Affirm To confirm a judgment on appea l. 1 Appeal A proceeding undertaken to have a decision reconsidered by 2 Availability of funds The United States Department of Education withholds funds for those institutions who have demonstrated violating institutions. 3 Case Law The law to be found in the collection of reported cases that form all or part of the body of law within a given jurisdiction. 4 Certiorari An extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review. 5 Challenge An act or instance of formally questioning the legality or l egal qualifications of a person, action, or thing. 6 Confidentiality Secrecy; the state of having the dissemination of certain information restricted. 7 Consent Agreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person. 8 1 2 Id. 3 See Appendix A, 20 U.S.C. 1232g. 4 5 Id. 6 Id. 7 Id. 8 Id.

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` 11 Decision A judicial or agency determination after consideration of the facts and the law; esp. a ruling, order, or judgment pronounced by a court when considering or disposing of a case. 9 Defendant A person sued in a civil proceeding o r accusing in a criminal proceeding. 10 Disclosure The act or process of making known something that was previously unknown; a revelation of facts. 11 Due Process The conduct of legal proceedings according to established rules and principles for the protecti on and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case. 12 Eligible Student A student who has reached the age of 18 or who is attending an institution of postsecondary educa tion. 13 Education Record Record, file, document or other material that contains information directly related to a student and is maintained by an educational agency or institution or by a person acting for such an agency or institution. 14 Equal Protection The 14 th Amendment guarantee that the government must treat a person or class of persons the same as it treats other persons or classes in like circumstances. 15 First Amendment The constitutional amendment ratified with the Bill of Rights in 1791, guarant eeing the freedoms of speech, religion, press, assembly, and petition. 16 9 Id. 10 Id. 11 Id. 12 Id. 13 Id. 14 See Appendix A, 20 U.S.C. 1232g (4). 15 16 Id.

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` 12 Freedom of Information Act The federal statute that establishes guidelines for public disclosure of documents and materials created and held by federal agencies. 17 General Educations Provisions Act A federal act relating to education within public educational institutions that FERPA was, initially, an amendment to this act. 18 Inform Notify. Inspect Examine. in loco parentis Of, relating to, or acting as a temporary guardian or careta ker of a child, taking on all or some of the responsibilities of a parent. 19 inter alia Among other things. 20 Judgment the parties in a case. 21 Notice Legal notification required by law or agr eement, or imparted by operation of law as a result of some fact; definite legal cognizance, actual or constructive, or an existing right or title. 22 Opinion case, usu. including the statement of facts, points of law, rationale, and dicta. 23 17 Id. 18 http://www2.ed.gov/policy/gen/guid/fpco/ferpa/leg history.html 19 rner ed., 8th ed., West 2004) 20 Id. 21 Id. 22 Id. 23 Id.

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` 13 Patriot Act A statute enacted in response to the terrorist attacks of September 11, 2001, giving law enforcement agencies broader authority to collect information on suspected terrorists, to share that informa tion among domestic and more secure, to detain suspects on new types of criminal charges using new criminal procedures, and to give the Treasury Department more authority to investigate and regul ate financial institutions that participate in foreign money laundering. 24 Petitioner A party who presents a petition to a court or other official body, esp. when seeking relief on appeal. 25 Policy The general principles by which a government is guided in its management of public affairs. 26 Practice The application of an idea or belief. Privacy The condition or state of being free from public attention to 27 Release A written authorization or permission for publication. 28 Remand To send (a case or claim) back to the court or tribunal from which it came for some further action. 29 Remedy The means of enforcing a right or preventing or redressing a wrong; legal or equitable relief. 30 Respondent The party against whom an appeal is taken. 31 24 Id. 25 Id. 26 Id. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id.

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` 14 Reverse To overturn (a judgment) on appeal. 32 Standing enforcement of a duty or right. 33 Supreme Court of the USA The court of last resort in the federal system, whose members are appointed by the President and approved by the Senate. 34 Title IX This is formally known as Title IX of the Educational Amendments of 1972. A federal statute generally prohibiting sex discrimination and harassment by educational facilities that receive federal funds. 35 U.S. Constitution The fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civ il rights and civil liberties. 36 Waiver The voluntary relinquishment or abandonment express or implied of a legal right or advantage. 37 32 Id. 33 Id. 34 Id. 35 Id. 36 Id. 37 Id.

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` 15 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Education LIMITATIONS AND ANALYSIS OF FERPA POLICIES WITH IN FLORIDA PUBLIC SCHOOL DISTRICTS By Sheryl D. Rogers August 2012 Chair: R. Craig Wood Major: Educa tional Leadership The study was a policy analysis of student records policies within Florida public K 12 school districts. The researcher gathered all student records policies for the sixty seven school districts In addition, traditional legal research was used involving applicable fe deral acts, state statutes, case law, as well as legal and educational literature. The study was two pronged. The first goal was to determine if Florida public school K 12 school district policies were aligned to the Federal Educational Rights and Privac y Act (FERPA) as well as Florida State Statute 1002.22. The second goal was to develop a model policy that unambiguously met all components of both FERPA and Florida State Statute 1002.22. The policy analysis showed that none of the sixty seven school dis tricts had a policy that met all components of both FERPA and Florida State Statute 1002.22. Over 60 % of all Florida public school districts did not even meet half of the components within both acts. These results demonstrated a need for a policy that was aligned to federal acts, state statutes, and case law. Based upon this analysis, a model policy was developed in order to adequately protect Florida public K 12 school districts from expensive potential litigation regarding student records and adherence to FERPA and Florida State Statute 1002.22. This model policy addresses all

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` 16 components of FERPA and Florida State Statute 1002.22 and takes into account federal and state case law.

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` 17 CHAPTER 1 INTRODUCTION School districts are required to adhere to federal Family Educational Rights and Privacy Act (hereinafter FERPA) or risk losing federal funding. 1 The Family Educational Rights and Privacy Act was enacted in 1974. 2 Prior to this time, there was relatively little guidance or regulation in the area of student records. The Family Educational Rights and Privacy Act changed the legal landscape in rega rd to student record confidentiality. FERPA was originally signed into law by President Ford on August 21, 1974. 3 As of 2005, there have been nine amendments to the act. 4 FERPA grants three primary rights to parents and adult students within the K 12 set ting. (Post secondary institutions grant these rights to the students, themselves, regardless of their age.) These include: the right to inspect, review, and access educational records, 5 the right to challenge the contents of the records, 6 and the right t o grant access to the disclosure of educational records. 7 Legal cases have also helped to define the Family Educational Rights and Privacy Act. Within the past decade, two notable cases have helped to define FERPA. Falvo v. Owasso was originally filed in Oklahoma in 2000. 8 Kristja Falvo, the parent, filed a complaint concerning peer 1 S ee Appendix A, 20 U.S.C. 1232g (6). 2 December 19, 2005. http://www2.ed.gov/policy/gen/guid/fpco/ferpa/leg history.html. 3 Id. 4 Id. 5 See Appendix A, 20 U.S.C. 1232g (1). 6 See Appendix A, 20 U.S.C. 1232g (6). 7 See Appendix A, 20 U.S.C. 1232g (6). 8 Falvo v. Owasso Independent School Distric t 233 F.3d 1203 (10th Cir. 2000).

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` 18 9 The case was eventually heard by the Supreme Court. 10 The Court ruled in favor of the petitioner, saying that peer grading is permissible, due to the fact that the grades were not yet part of the student record. 11 In another FERPA related case, Gonzaga v. Doe an undergraduate student, John Doe, brought suit against Gonzaga University, claiming that his FERPA rights ha d been violated. At the time, teacher candidates at Gonzaga University were required to obtain an affidavit of good character in order to be awarded a teaching certificate. 12 A representative of the university overheard an allegation of sexual misconduct b y Doe and disallowed his granting of a teaching certificate. 13 Doe sued the university in state court under inter alia 42 U.S. C. §1983, alleging a violation of FERPA provisions. 14 The decision rendered by the Supreme Court was in favor of petitioner, Gonza ga University, as FERPA does not grant personal rights. 15 Response of Educational Institutions to FERPA/Buckley Amendment FERPA was originally passed by the U.S. Senate in 1974 as an amendment to the Elementary and Secondary Education amendments of 1965. 16 FERPA makes three basic provisions in terms of student records, as previously cited: they must remain confidential (access to third parties may only be granted by parental permission), parents can review the records by 9 Id. 10 Owasso Indep. Sch. Dist. v. Falvo 534 U.S. 426 (2002). 11 Id. 12 Gonzaga University v. Doe 536 U.S. 273 (2002). 13 Id. 14 Id. 15 Id. 16 http://www2.ed.gov/policy/gen/guid/fpco/ferpa/leg history.html.

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` 19 request, and inaccuracies may be que stioned if information contained within the records is 17 Any public educational institution, K 12 as well as higher education, that receives federal funds is subject to abiding by FERPA ten ets. 18 The requirements of FERPA have changed throughout the years. After the repeal of a portion of the act, educational institutions no longer are required to have a formal written student records policy, but will adhere to the remaining portion of the statute if an annual notice regarding FERPA were provided to parents. 19 Institutions that are proven to not have been abiding by the provisions of FERPA are subject to the loss of federal funding. 20 However, this consequence will be enforced only if the in stitution has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students withou t the written consent of their parents to any individual, agency, or organization 21 Educational institutions are required to protect the FERPA rights of students or lose federal funding. 22 K 12 public school systems and universities have developed train ing and education programs for employees that detail FERPA and requirements of employees in adhering to FERPA policies. Some notable exceptions within FERPA exist that allow disclosure of information if there 17 See Appendix A, 20 U.S.C. 1232g (2). 18 See Appendix A, 20 U.S.C. 1232g (3). 19 Federal Register 61, no. 226 (21 November 1996): 529292. 20 See Appendix A, 20 U.S.C. 1232g (6). 21 Id. 22 Id.

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` 20 were any type of violence, threats of terrori sm, alcohol and drug violations, or reporting of sex offenders. 23 24 As stated in t he first section of the statute, students and parents shall have three basic rights in regard to student records. These rights include the right to access records, the right to challenge information contained within the record, and the right for the recor d to remain private. 25 Similar to the code of regulations, which guides the implementation of FERPA, 26 the state statute has a rule to guide the implementation of the state statute. 27 ntained is very A information houses the permanent record. Category B houses temporary information. 28 Purpose of the Study The purpose of the study was to determine if Florida school district policies related to student records were aligned with the Family Educational Rights and Privacy Act, were in alignment to the Florida Statutes regarding student records, and were in accordance with recent court decision s. The research question, therefore, was: Are Florida K 12 public school board policies alig ned with FERPA, Florida Statute 1002.22 and recent court decisions? By analyzing 23 34 CFR Part 99 s ee Appendix B, § 99.31 24 Fla. Stat. § 1002.22 (2009) s ee Appendix C, § 1. 25 Id. 26 See Appendix B. 27 Fla. Admin. Code R. 6A 1.0 955 s ee Appendix D. 28 Id.

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` 21 current policies in relation to the federal Family Educational Rights and Privacy Act, as well as applicable state law and statutes, it could be determined as to whether current policies within the K 12 school districts of Florida were in accordance with recent court decisions. The primary function of the analysis was to determine if po licies were satisfactorily written in order to avoid costly litigation for the school district. The focus of the analysis was twofold: 1. To determine whether current policies within the sixty seven K 12 school districts of Florida were in assent with the recent federal and state parameters. 2. To decide the model policy school boards should consider in order to adhere to the federal act and avoid costly litigation for the district as well as individuals within the district. Background of the Study little legislation to deal with student records until 1974 when the Buckley 29 Before the institution of FERPA, there was an upward trend in the number of abuses of student records within the United States. 30 Letters from parents to groups such as the American Civil Liberties Union and the Russell Sage Foundation alleged that access to student records by parents was not uniform. 31 Also, documented abuses of release of confidential student infor mation to outside agencies had been reported 32 The issue of privacy surrounding records began to gain more momentum in the early 1970s. This is evident in a report generated by the U.S. House of Representatives regarding 29 Education 101, no. 4 (Summer 1981): 335. 30 Privacy Act of 1974: Recommendations for Realigning Educational Privacy with 314. 31 Id. 32 Id.

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` 22 privacy and individual records in 1971. 33 At approximately the same time as the introduction of FERPA legislation another act regarding privacy was passed. 34 This legislation, the Privacy Act of 1974, details how the federal government must handle individual private information. 35 FERPA was a very similar federal law that required educational agencies that received federal money to consent of the student and/or legal guardian of the student. 36 Ther e are two main requirements of public educational institutions in terms of FERPA. First, FERPA guarantees parental (and student, after students are eighteen (18) years of age or are enrolled in an institution of higher education) rights to access educatio nal records. 37 Second, FERPA bars disclosure of educational records without prior consent of the parents or students with some notable exceptions. 38 The purpose of FERPA is to protect the release of confidential student information to outside agencies witho ut the express written consent of the parent (or student after the rights have transferred). 39 This act was created because of a concern over privacy of educational records. 40 33 U.S. House. "Resolved: That More Stringent Control Should be Im posed Upon Government Agencies Gathering Information About U.S. Citizens," (H. Doc. 92 167). 1971. Text from: Congressional Documents. Available from: ProQuest Congressional; Accessed: 7/3/11 34 5 U.S.C. § 552a 35 Id. 36 See Appendix A, 20 U.S.C. 1232g (6). 37 See Appendix A, 20 U.S.C. 1232g (1). 38 See Appendix B, § 99.31. 39 See Appendix B, § 99.2. 40 Congress, Senate, Joint Statement in Explanation of Buckley/Pell Amendment, 93rd Cong., 2nd sess., Congressional Record 120, (13 December 1974): 39862 39863

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` 23 However, Falvo and Gonzaga which were decided by the United States Supreme Court, have limited the application of Falvo and Gonzaga defined how FERPA can be interpreted. Falvo leaves matters of pedagogy regarding peer grading to the school systems. 41 The decision in Gonzaga has determined that there is no personal right, enforceable through FERPA, to privacy for the student. 42 Boundaries Defined by Legal Edicts Regarding the Study The boundaries of this study were created by the United States Congress and the enactment of the Federal Educational Rights and Privacy Act of 1974. In addition to FERPA, federal and state case law, the Florida constitution, and statutes, rules and regulations provide additional limitations to the use of student educational records. The First 43 and F ourteenth 44 amendments to the United States Constitution, the Freedom of Information Act, 45 and, in some cases, Title I X 46 may be involved in shaping policies for student records. Throughout the literature many issues necessitate analysis. Included amongst t hese are: access 47 confidential ity, 48 consent 49 41 Ow asso Independent School District v. Falvo 534 U.S. 426 (2002). 42 Gonzaga University v. Doe 536 U.S. 273 (2002). 43 U.S. Const. amend. I 44 U.S. Const. amend. XIV, §1 45 5 U.S.C § 552 (1966) 46 20 U.S.C. § 1681 (1972) 47 See Appendix A, 20 U.S.C. 1232g (a). 48 See Appendix A, 20 U.S.C. 1232g (1). 49 See Appendix A, 20 U.S.C. 1232g (6).

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` 24 disclosure 50 due process 51 education record 52 equal protection 53 availability of funds 54 inform 55 inspect/challenge 56 notice 57 policy or practice 58 privacy 59 and release 60 Access by parents and legal guardians to student records is one of the chief components granted by FERPA. 61 Once parents and/or guardians have gained access to student records, the right to inspect those records is also afforded by FERPA. If incorrect information were to be found by the parents/guardians during the inspection, the right to challenge that inform ation is within the scope of FERPA. 62 Prior to challenging the information within the educational record, parents/guardians (and after the age of eighteen or when student is enrolled in an institution of higher education if younger than eighteen, students themselves) must be afforded due process. 63 Due process is defined as the right of the accused to be present and be heard before a board charged with adjudicating a particular matter. Every fact that relates to the question at hand is involved. If one fails to observe 50 5 U.S.C § 552 (1966) 51 U.S. Const. amend. XIV, §1 52 See Appendix A, 20 U.S.C. 1232g (a). 53 U.S. Const. amend. XIV, §1 54 See Appendix A, 20 U.S.C. 1232g (a). 55 See Appendix A, 20 U.S.C. 1232g (5). 56 See Appendix A, 20 U.S.C. 1232g (1). 57 See Appendix A, 20 U.S.C. 1232g (5). 58 See Appendix A, 20 U.S.C. 1232g (6). 59 Id; see also 5 U.S.C § 552 (1966); 5 U.S.C. § 552a (1974) 60 Id. 61 See Appendix A, 20 U.S.C. 1232g (a). 62 See Appendix A, 20 U.S.C. 1232g (1). 63 U.S. Const. amend. XIV, §1

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` 25 all legal rights that are afforded an individual then it could be argued that due process of law has not been granted. 64 The primary purpose for the original creation of FERPA was to protect the confidentiality of student records by prohibiting disclosure of personally identifiable information to any individual who was not the student (or the parent of the student prior to education beyond secondary school or before the age of eighteen) without prior consent. 65 Confidentiality is a primary FERPA facet, with multiple nuances and interpretations. Confidentiality extends to limited disclosure of student information. Disclosure can only be granted to third parties with parent or student consent. This disclosure is limited and the third party receivi ng the information may not disclose student information to another person or agency without additional consent. 66 An education record, as defined by FERPA, is a record with materials that are directly related to the student and maintained by the educationa l institution. 67 This definition has been reviewed throughout the course of litigation in order to determine what the limitations of FERPA truly are. Students are without their parents or guardians throughout the majority of their school experiences. The school, therefore, acts in loco parentis or in place of the parent. 68 FERPA requires that school districts must inform students about their rights to confidentiality with 64 BLACK'S LAW DICTIONARY, (8th ed. 2004). 65 See Appendix A, 20 U.S.C. 1232g (5). 66 See Appendix A, 20 U.S.C. 1232g (4). 67 Id. 68 ed., West 2004).

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` 26 educational records. 69 Parents or guardians have the right to prior notice in the cas e of legal proceedings, prior to educational records being released in response to a court order. This may involve parents or guardians consulting attorneys, before records are released. 70 FERPA dictates that federal funding that can be revoked if an ins titution shows a pattern of repeated release of confidential student information without consent from students or parents. 71 The expenditure of federal funds is prohibited to any organization that has a policy or practice of denying access of student record s to parents and, after the age of eighteen, to the students. 72 The equal protection clause had long been used to argue cases in federal court. However, as the composition of the Supreme C ourt changed, it became exceedingly more difficult for cases to be argued that either due process or equal protection had been denied. 73 Although privacy is an intrinsic part of FERPA, privacy has its limitations, as well. As will be discussed further in more detail, Owasso defined the privacy limitations embodied within FERPA. Peer grading and orally announcing to the teacher the grade of the peer on a specific assignment does not violate federal privacy laws. 74 A natural tension exists between FERPA and public records laws. Public media has attempted to gain access to st udent records and school records that include student information. In 69 See Appendix A, 20 U.S.C. 1232g (6). 70 U.S. Depa rtment of Education. 1997. Sharing information: A guide to the Educational Rights and Privacy Act. Washington, D.C.: U.S. Department of Education 71 See Appendix A, 20 U.S.C. 1232g (6). 72 Id. 73 See, e.g., Ingraham v. Wright 430 U.S. 651 (1977) (rejecting n otification prior to administering corporal punishment ); Grutter v. Bollinger 539 U.S. 306 (2003) (upholding the practice of affirmative action admissions to minority students) and ( Dandridge v. Williams 397 U.S. 471, 486 87 (1970) (finding no constituti onal right to subsistence benefits). 74 Owasso Independent School District v. Falvo 534 U.S. 426 (2002).

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` 27 addition, student news publications have printed information that may be considered confidential. Case law has provided structure for institutions in regard to privacy issues including First Amendment freedom of expression. The First Amendment provides fundamental constitutional right s, including the right to free speech A FERPA case, Doe v. Gonzaga University on appeal asserted that the trial court applied an incorrect standard of proof under the first amendment. 75 The Freedom of Information Act is a federal act that allows disclosure of information and documents controlled by the United States government to individuals who request it. 76 In addition, each state has its own Freedom of Information Act. While the federal Freedom of Information Act appears to be related to FERPA, which is enforced by the United States Department of Education, the state Freedom of Information Acts are more closely related to state educational entities who respond to requests for records. Interpretations between FERPA and state Freedom of Information Acts can be problematic. One state, Ohio, faced an issue of conflict between the state Freedom of Information Act and FERPA. 77 In this case, the Miami University student newspaper requested discipline records from the university. The university supplied the records, yet redacted key information that could identify the students, as FERPA dictates. 78 In the ensuing case the finding was that disciplinary Education disagreed with this ruling, but lacked standing to bring the case to further legal action. 79 75 Doe v. Gonzaga Univ ., 99 Wash.App. 338, 363, 992 P.2d 545 (2000). 76 5 U.S.C § 552 (1966) 77 Ohio Rev. Code Ann. § 149.43 78 United States v. Miami University and Ohio State University 91 F. Supp. 2d 1132 (S.D. Oh. 2000). 79 Id.

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` 28 FERPA is very specific in regard to written documents. 80 Privacy of student records is integral to FERPA. As stated previously, other laws related to privacy of written documents are the First 81 and Fourteenth Amendments 82 the Freedom of Information Act 83 and Ti tle XI 84 in some cases. The Supreme Court ruled that the right to privacy inherent within the Fourteenth Amendment did not apply to student grades in Owasso v. Falvo 85 interpretation of FERPA does not grant F ourteenth A mendment expectati ons of privacy, as has been noted in recent decisions related to FERPA claims. 86 Justification of the Study S chool board policies differ from district to district. 87 However, each district has policies and/or procedures related to student records. Confidentiality of student records is critical to avoid costly legal action against a district. Lack of these policies, or a poorly defined policy, could leave the distric t vulnerable to costly legal action. The United States Supreme Court has further defined FERPA boundaries in Falvo 88 and Gonzaga 89 yet these cases have brought new questions to light regarding student records. It is 80 See Appendix A, 20 U.S.C. 1232g 81 U.S. Const. amend. I 82 U.S. Const. amend. XIV, §1 83 5 U.S.C § 552 (1966) 84 20 U.S.C. § 1681 (1972) 85 Owasso Independent School District v. Falvo 534 U.S. 426 (2002). 86 Risica v. Dumas 466 F. Supp. 2d 434 (D. Conn. 2006). 87 The researcher collected student records policies from all sixty seven Florida public school boards and/or related information from these districts related to student records. 88 Owasso Independent School District v. Falvo 534 U.S. 426 (2002). 89 Gonzaga U niversity v. Doe 536 U.S. 273 (2002).

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` 29 logical to assume that there will be leg al challenges in the future regarding the handling of student records within at least one of the sixty seven K 12 public school districts in Florida. For that reason, Florida school boards should be prepared with prudent policies and/or procedures related to the manner in which student records are handled. The most recent information regarding decisions made in court regarding FERPA, as well as FERPA, itself, can assist school boards in determining potential litigation that could arise in regard to student records. This study was justified as an attempt to further clarify this significant and current topic. Method of the Study The process of legal research was used to identify and retrieve information related to student records and the policies surrounding student records. This technique used finding primary sources of law, searching secondary legal authorities, and reviewing non legal sources for supporting documentation. Relevant legal decisions were reviewed and an analysis of judicial decisions was conducted. Also, a review of Florida school board policies within all K 12 sixty seven Florida districts was undertaken. Sim ilarities and dissimilarities inherent within the policies were distinguished. An evaluation of the various procedures in use by the school districts was conducted. Strict note was made for those institutions that referenced FERPA within the policy. Dis trict student records policies were then evaluated using legal analysis, focusing upon FERPA Supreme Court decisions, as well as 11 th Circuit Court decisions. A model student records policy was then created, with the intention that districts could use thi s model to create or revise student records policies and lessen the risk of litigation. Definition of Terms this work. All relevant terms and definitions are provided within appendix E of this study.

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` 30 Limitations of the Study This study might apply to public school districts around the country, to some extent. However, it was limited to cases that have direct bearing upon the state of Florida, as well as policies writ ten within the Florida school districts. It can provide indications of policies within other states, although these policies would need to be analyzed in detail. In addition, the policies analyzed were collected from September 2010 to March 2012. Any cha nges made to school district policies after March 2012 would not be applicable to the results of this study. Organization of the Study Chapter 2 include d a discussion of FERPA legislation, a discussion of the Florida statutes relevant to student records w ithin K 12 public school districts, a review of case law and legal literature, as well as a review of educational literature related to student records. This study furnishes the foundation for the rationale and research of the study. Not only were article s relevant to the study included, but related legal principles were examined. In C hapter 3 the Florida school district policies were detailed in regard to the contents of the federal and state statutes in relation to the content of the district policy. Each major component of the statutes was discussed, along with the school district policies that addressed the specific component. In C hapter 4 an analysis of the district policies determined which policies truly followed both the major components of FER PA, as well as the most critical pieces of the Florida statute. C hapter 5 provided a model Florida school board policy as well as future research options. The model policy was created to aid Florida school board groups when crafting or refining policies related to students records for continued best practice.

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` 31 Chapter Summary The Family Educational Rights and Privacy Act (FERPA) details the measures that public K 12 school systems and higher education institutions must take in order to protect student co nfidentiality. In addition, state statute defines how public educational institutions must provide students and parents the rights to privacy of records, access to records, and the right to challenge the contents of the records. Falvo and Gonzaga have fur ther defined how FERPA is interpreted. The purpose of this study was to determine whether current policies within the sixty seven K 12 school districts of Florida were in compliance with recent federal and state parameters and to create a model policy tha t school boards should consider in order to adhere to FERPA and avoid costly litigation for the district as well as individuals within the district.

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` 32 CHAPTER 2 LITERATURE REVIEW This study was conducted in order to determine if Florida district policies related to student records were aligned with the Family Educational Rights and Privacy Act 1 (FERPA) and are in accord with recent court decisions. In addition, a model student records policy was crafted, with the intention that districts can use the model policy to create or revise student records policies and decrease the possibility of litigation. This review focused upon critical court cases, state and federal statutes related to student records, and journal articles with a focus on FER PA issues. Further, educational literature and law reviews concerning student records were also focal points. While there have been multiple reviews regarding FERPA and student records, little has been written regarding FERPA policies within the state of Florida, as well as the limitations of FERPA. This review centered on the scrutiny of FERPA decisions and how school district policies can be crafted to decrease the risk of litigation against a school district. The information garnered from this review a ids in establishing a comprehension of the concepts and issues utilized within the analysis of data in this study. FERPA Federal Legislation The era of the Warren Court changed not only judicial opinions and matters, but changed the landscape of civil rights and liberties within American society. 2 The Supreme Court broadened the constitutional right to privacy when deciding Griswold v. Connecticut 3 President Nixon, though in the midst of the Watergate investigation, gave a radio add ress that focused upon the American 1 See Appendix A. 2 David Luban. "The Warren Court and the Concept of a Right." Harvard Civil Rights Civil Liberties Law Review 34, no. 1 (Winter99 1999): 7 37. Academic Search Premier, EBSCOhost (accessed March 24, 2012). 3 Id.

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` 33 A system that fails to respect its citizens' right to privacy fails to respect the citizens themselves. 4 Within this time of heightened awareness regarding privacy, Senator Buckley introduced an amendment to the General Education Provisions Act on the floor of the Senate which would later be referred to as the Buckley amendment, or FERPA. 5 legislators regardi ng the protection of personal privacy. Before C ongress, Senator Buckley announced the establishment of a high r every protection. 6 d improper disclosure of such records and 7 This amendment, therefore, which has ramifications to all public K 12 institutions (as well as higher educational institutions), has very little legislative history, as opposed to most other legislation. 8 This atypical creation of legislation bypassed input by committees that may have 9 4 The American Presidency Project, www.presidency.ucsb.edu/ws/index.php?pid=4364 (last visited March 25, 2012), President Richard Nixon, Radio Address abo ut the American Right of Privacy (February 23, 1974). 5 Stephanie Humphries. "Institutes of higher education, safety swords, and privacy shields: reconciling FERPA and the common law." Journal of College and University Law 35.1 (2008): 145 215. 6 Congressi onal Record, Senate, May 9, 1974, at 13952. 7 Id. 8 Humphries, p. 151. 9 New Directions for Student Services no. 94 (Summer 2001): 39.

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` 34 Right to Protect Individual Privacy (Personally Identifiable Educational Reco rds Confidential) The creator of the FERPA amendment, Senator James Buckley stated his reasoning for designing the amendment by addressing a group of during the legislative conference of the national congress of parents and teachers. He explained: There has been clear evidence of frequent, even systematic violations of the privacy of students and parents by the schools through the unauthorized collection of sensitive personal information and the unauthorized, inappropriate release of personal data to va r i ous individuals and organizations. In addition, the growth of the use of computer data banks on students and in div iduals in general has threatened to team away most of the few remaining veils guarding personal privacy, and to place enormous, dangerous pow er in the hands of the government, as well as private organizations. 10 According to FERPA, parents and eligible students may have access and grant access to third parties with consent. Students become eligible to access their own records when they are age eighteen or are enrolled in postsecondary education. 11 This control of access is the privacy of student records that FERPA entails. Not only do parents and students have access to their records upon demand (within forty five days of the request being made) 12 but parents (and eligible students) can challenge the contents of an educational record, request changes, and grant access to third parties only through written consent. 13 10 121 CONG. REC. 13,991 (1975). 11 S ee Appendix A, 20 U.S.C. 1232g (6). 12 See Appendix A, 20 U.S.C. 1232g (1). 13 See Appendix A, 20 U.S.C. 1232g (1), 20 U.S.C. 1232g (2), 20 U.S.C. 1232g (5).

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` 35 Right to Access Records A parent or eligible student may request to view education al records and the educational inst itution must grant this request within forty five days of the request. 14 The institution is not required to make copies, of the record, but simply provide access to the parent or student to the record. 15 If distance dictate s that the records be copied, the educational institution may charge a fee for those copies. 16 The institution must respond to requests to explain the information within the record. 17 The exceptions that exist to accessing student educational records are for those portions of the record that the parent or student has waived right to access such as letters of recommendation, honors, employment applications, etc. 18 Also, if information within the record relates to more than just the student (or parent) who has r equested the information, that information is exempt from inspection. 19 Right to Challenge and Correct Inaccuracies (Establish Fair Information Practices) Upon inspection of the educational record, if the parent or student determines that the record contain s inaccuracies, the parent or student may request that the educational institution amend the record. 20 The institution shall make the determination whether to amend the record within a timely 14 See Appendix B, § 99.10. 15 Id. 16 Id. 17 Id. 18 See Appendix B, § 99.12 19 Id. 20 See Appendix B, § 99.20.

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` 36 manner. 21 If the institution makes the determination not to amend the record, the parent or student has the right to a hearing. 22 If the hearing determines that the educational record were in fact, inaccurate, the institution must correct the record to ensure accur acy. 23 If the hearing does not determine that the record w ere in error, the parent or student has the right to place a statement reflecting the part of the record in dispute. 24 The parent or student must be notified in writing regarding the result of the hea ring 25 Directory Information parent or eligible students. 26 This information is generally not deemed to be harmful if made public. 27 Examples of such information are: student name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status; dates of attendance; participation in school sponsored sports or activities; weight and height of members of athletic teams; degrees, honors, and awards; and the most recent educational agency or institution attended. 28 parent o r students provides written notice to the educational institution within a specified period of 21 Id. The regulations do not specify an example of a timely manner. 22 Id. 23 See Appendix B, § 99.21. 24 Id. 25 Id. No other information about the specifics of the hearing i.e. what personnel are in attendance, etc. are given within the regulations. 26 See Appendix B, § 99.3. 27 Id. 28 Id.

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` 37 time. This time is set by the institution and is indicated in the notice regarding directory information that the institution is required to disseminate to pare nts and/or students. 29 The written notice to parents and/or students is a required component of FERPA. 30 Exceptions to FERPA There are notable exceptions to FERPA that allow the disclosure of information to third parties. 31 Although a majority of these excep tions apply to institutions of higher education, rather than K 12 school districts, there are exceptions to FERPA that would apply to any student in any public educational institution. 32 One of the most important exceptions that would be critical in preven ting violent acts by students is regarding the release of information to third parties. 33 This subject to regulations of the Secretary, in connection with an emergency, appropriate persons if the knowledge of such information is [sic] nec essary to protect the health or safety of the student or other persons 34 It is typically assumed that FERPA prohibits the disclosure of any information to third parties. However, FERPA provides, broad exceptions for health and safety concerns 35 In addition to the exceptions for providing information to third parties, FERPA has exceptions for items that may reside within an educational institution but would not be deemed 29 See Appendix B, § 99.37. 30 Id. 31 See Appendix A, 20 U.S.C. 1232g (5 ) and 20 U.S.C. 1232g (6). 32 Notable exceptions to Appendix A that would not apply to K 12 educational institutions are e.g. section (i) which 33 See Appendix A, 20 U.S.C. 1232g (6). 34 Id. 35 James Alan Fox a American Behavioral Scientist 52, no. 10 (June 2009): 1465 1485.

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` 38 within an 36 FERPA states that an education record does not include : 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 o ther person except a substitute 37 records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforceme nt unit for the purpose of law enforcement 38 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 rela te exclusively for use for any other purpose 39 records on a student who is eighteen years of age or older, or is attending an institution of postsecondary education, which are mad e 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 connect ion 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 40 W ith careful analysis, the thoughtful education practitioner must be able to determine if the propensity for a violent act against self or others exists, whether alcohol has been involved and must be reported to a parent (even if the child is of the age of majority, but not yet 21), or whether the item in question were 36 See, e.g., Belanger v. Nashua N.H. Sch. Dist., 856 F. Supp. 40, 41, 50 (D.N.H. 1994). 37 See Appendix A, 20 U.S.C. 1232g (4). 38 Id. 39 Id. 40 Id.

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` 39 Remedies If a violation of FERPA were suspected the procedure is for the accuser to file a complaint hereinafter FPCO). 41 The complaint must be specific as to the violation that is alleged. 42 The allegation of a FERPA viol 43 of violations. 44 The complaint must be 45 The FPCO may issue an extension of time, if they deem it necessary. 46 The investigation includes the incident that the p arent or eligible student filed. 47 of violating FERPA. 48 The FPCO notifies the institution alleged of violating FERPA. 49 The notification by the FPCO to the insti tution includes the specifics of the allegation as well as a direction to the institution to provide the FPCO with a written response regarding the allegation. 50 If the FPCO finds that there w ere 51 or FERPA v iolations, then the institution is informed in writing and given time to amend the situation. 52 Regardless of the outcome of the investigation, the institution is notified in writing about the 41 See Appendix A; Appendix B. The FPC Office's address is: Family Policy Compliance Office, U.S. Department of Education, Washington D.C., 20202 4605. 42 See Appendix B, § 99.64. 43 See Appendix A, 20 U.S.C. 1232g (6). 44 See Appendix B, § 99. 45 See Appendix B, § 99.64. Timely is defined within the C.F.R. as within 180 days. 46 Id. 47 See Appendix A, 20 U.S.C. 1232g (6). 48 See Appendix B, § 99.64. 49 See Appendix B, § 99.65. 50 Id. 51 See Appendix A, 20 U.S.C. 1232g (6). 52 See Appendix B, § 99.66.

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` 40 53 If the FPCO does find that the instit ution 54 of violating FERPA, there are three possible punishments that the Secretary of Education may levy against the institution. 55 These include: not providing continued payments for federal programs that the institution t ypically receives, issuance of a cease and desist order to force the institution into compliance, or cease federal payments to the institution. 56 Although on its face, these remedies sound threatening, in actuality, they are not. FERPA t mechanisms at two extreme ends on a spectrum of strength: at one end is the impotent FPC Office complaint process, and at the other, the possibility of withholding all 57 Due to the fact that FERPA violations have been found but have never been punished by withholding federal funds, FERPA has been described as weak. 58 Florida Statute 1002.22: Education R ecords and R eports of K 12 S tudents Florida Statute 1002.22 History Statute 1002.22 which is included within the K 20 Education Code of the Florida statutes was enacted into law by Ch. 77 60, Laws of Florida. 59 This statute, which at the time it was written 53 Id. 54 See Appendix A, 20 U.S.C. 1232g (6). 55 See Appendix B, § 99.67. 56 Id. 57 Catholic University Law Review 46 (1996): 617. 58 Indiana Law Journal no. 74: 1321 1345. 59 HRS and access to school records. AGO 87 10 (1987).

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` 41 was section 228.093, was considered by the Florida Senate on April 8, 1977. 60 nsor stated that the purpose of the bill was to align Florida statutes regarding student records with the Federal statute, FERPA. 61 The statute, within section 228.093 was modified fifteen times, as is evident within the 62 The new K 20 Education Code took effect on January 7, 2003. At this time, the former section 228.093 became section 1002.22. 63 Since the section was renumbered, it has been modified four times. 64 Rights within the Statute (Mirroring FERPA) Although FERPA states that a parent or eligible student may access educational records within forty five days of a request 65 Florida administrative rules shorten this time period to a reasonable time, which the administrative rules declare is no longer than thirty days. 66 There is nothing specifically stated within the administrative rules about a requirement to access records, and not make copies of the student record. 67 However, there is a requirement by the administrative rules that each school board should have a policy that dictates the following: Provisions for an annual written notice 68 60 Id. 61 Id. 62 Fla Stat. § 228.093 (2001) 63 Fla. Stat. § 1002.22 (2009) 64 Id. 65 See Appendix B, § 99.10. 66 See Appendix D, section 6. 67 Id. 68 See Appendix D, section 6.

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` 42 Provisions for timely access 69 Provisions for exercising waiver of rights 70 A schedule of fees and charges for copies of education records 71 A listing of the types and locations of edu cation records along with titles and addresses of the records officials 72 Provisions for disclosure of personally identifiable information where prior written consent is not required 73 Provisions for disclosure of personally identifiable information where prior written consent is required (as well as provisions for maintaining records of requests and disclosures) 74 Provisions for the maintenance and security of student records 75 Provisions for disclosure of personally identifiable information in health and sa fety emergencies 76 Provisions for disclosure of directory information 77 Provisions for challenging the content of any record which is believed to be inaccurate 78 Provisions for ensuring the accuracy of information maintained and for periodic review/elimination of information no longer useful 79 69 Id. 70 Id. 71 Id. 72 Id. 73 Id. 74 Id. 75 Id. 76 Id. 77 Id. 78 Id. 79 Id.

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` 43 Remedies Neither state statute 1002.22 nor the administrative rules dictate the specific procedure that should be followed if a violation of the state statute were suspected. 80 However, the statute does 81 Within this section, the statute explains that the bring an action in the circuit court to enforce the violated right by injunction 82 for remedies for individual parties. FERPA Case Law Gonzaga University v. Doe Gonzaga was heard by the U.S. Supreme Court. Decided in 2001, this case sets the precedent f or monetary damages to individuals not being available to individuals under FERPA. 83 Although monetary damages have been awarded through Section 1983, 84 it is highly unlikely that with the opinion given on Gonzaga that this will occur in future cases. Gonzag a effectively curtailed utilizing FERPA as a vehicle to collect monetary damages based upon student confidentiality being violated. 85 80 See Appendices C and D. 81 See Appendix C, section 5. 82 Id. 83 Sasha Samberg Columbia Law Review 103, no. 7 (November 2003): 1838 1887. 84 See Fay v. South Colonie Central Sch. Dist ., 802 F .2d 21, 33 (2nd Cir. 1986). 85 Samberg Champion, p. 1886.

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` 44 Owasso Independent School District v. Falvo Falvo also a US Supreme Court case, carries weight in terms of being used as a precedent in the future. Falvo 86 The court focused upon not only what constitutes an education record, but who maintains such a record. 87 It was the opinion of the court that a grade does not become a n education record until it is entered into the 88 This decision narrowly defines an education record and limits application of FERPA across many situations. 89 United States v. Miami University and Ohio State University While not a Supreme Court Case, a notable federal case regarding FERPA and student records is United States of America v. Miami University and Ohio State University. 90 This case United States of America, brought suit against the defendants, Miami University of Ohio and the Ohio State University, on the grounds that these universities violated FERPA by releasing disciplinary records or students without the pri or consent of either the students, themselves, or the parents of the students. 91 The intent of the plaintiff was to bar these universities from releasing this 86 Breadth to Ferpa in its Confusing and Contradictory Falvo v. Owasso Independent School Distr Brigham Young University Education & Law Journal no. 2 (June 2001): 327. 87 Creighton Law Review 41, no 2 (February 2008): 277 314. 88 Bennett and Bower, p. 335. 89 Creighton Law Review p. 299. 90 United States v. Miami University and Ohio State University 91 F. Supp. 2d 1132 (S.D. Oh. 2000) 91 Id. at 1134.

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` 45 type of information, as the plaintiff stated that these universities have a policy or practice of releasing this type of information, which was in direct violation of FERPA. 92 The facts leading to the case were detailed. The Miami University newspaper, The Miami Student originally requested discipline records from the university. The university deni ed the original request. Based upon this denial, the student newspaper requested these records under Ohio statute. 93 The university subsequently released redacted records that did not disclose any identifying information regarding the students, as deemed necessary by FERPA. 94 The newspaper was not satisfied and sought the original information, filing a mandamus action in the Ohio Supreme Court and citing the Ohio Public Records Act. 95 The court upheld the request of the newspaper stating that disciplinary re cords are not education records, as defined by FERPA. 96 However, the United States Department of Education did not agree with this interpretation and contacted the Miami University of Ohio to inform the university that it may be in violation of FERPA, as di scipline records were decision to the United States Supreme Court. The Supreme Court, however, denied certiorari 97 This left the University with no alternative but to supply the information to the student newspaper, based upon the decision of the Ohio Supreme Court. 98 Thus, the University informed the United States Department of Education of its intent to supply the information regarding student discipline 92 Id. at 1142. 93 Ohio Rev. Code § 49.43 94 Miami at 1135. 95 Id. 96 Id. 97 Id. at 1136. 98 The Miami Student v. Miami University 680 N.E.2d 956 (Ohio 1997)

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` 46 records to the university, as based upon the decision handed down by the Ohio State Supreme Court. In the meantime, the Department learned that T he Chronicle the student newspaper of Ohio State University, had made a request for student discipline records, based upon the decision made by the Ohio State Supreme Court regarding the Miami University discipline records. 99 Subsequently, the Department of Education filed a preliminary injunction on January 23, 1998 with th e federal district court in Columbus, Ohio barring the release of this information. The court granted this injunction and the records were not released. 100 The Chronicle filed a motion to dismiss the injunction based upon lack of standing. In summary, thi s motion to dismiss was denied based upon three reasons provided by the sixth circuit court. 101 First, the purpose and language of the statute conferred authority to the Department of Education and the United States. 102 Second, the United States and the Depar tment of Education had the right to file suit based upon the fact that the universities were recipients of federal funding. 103 Finally, the court determined that FERPA created mandated obligations on the part of the institutions that accept federal funding. 104 While the Ohio Supreme Court initially determined that discipline records were not a part of the educational record, due to the fact that they were not academic in nature, the Sixth Circuit 99 Id. p. 3 100 See Miami Univ ., 91 F. Supp. 2d at 1148 54 (performing a comprehensive statutory interpretation, the court examined the facial content, leg islative history, and legislative intent to come to the conclusion that education records include student disciplinary records). 101 United States v. Miami University and Ohio State University 91 F. Supp. 2d 1132 (S.D. Oh. 2000) 102 Id. p. 4 103 Id. p. 8 104 Se e Maynard v. Greater Hoyt Sch. Dist .876 F. Supp. 1104, 1107 (D.S.D. 1995). (Maynard cited that FERPA cannot be used to provide a comprehensive enforcement mechanism which would have provided the Maynards with the monetary relief they sought as well as ensu re future releases of confidential student educational records information from the school district. Notation in the case indicated that the school district had violated FERPA and was notified by the Department of Education.)

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` 47 Court concluded that discipline records were, indeed, part of a n educational record, and, therefore, were not permitted to be disclosed without the express consent of student or guardian. 105 Florida Statute 1 0 02.22 (formerly 228.093) Case Law WFTV, Inc. v. School Bd. of Seminole WFTV involve d the Orlando television station who brought suit against the Seminole County School District after the district refused to release surveillance videotapes of students on school bus transportation routes. 106 The fifth district court of appeals affirmed the lo that even redacted student records (including videos) should not be released to a requesting party. 107 Student records are exempt from the public records laws in its entirety. 108 This upholds the right of privacy within statute 1002.22. 109 H uman Rights Advocacy Committee for Developmental Services for District VIII v. Lee County School Board In Human Rights Advocacy Committee for Developmental Services the committee requested records from the Lee County School Board while in the midst of investigating instructional school personnel charged with alleged abuse against four developmentally delayed students. 110 Access to those records was denied in both the circuit court and the appellate court cases. 111 Due to this case, House Bill 1020 was intro duced into the 1984 Florida legislative 105 United States v. Miami University and Ohio State University 91 F. Supp. 2d 1132 (S.D. Oh. 2000) 106 WFTV, Inc. v. Sch. Bd. of Seminole 874 So.2d 48, 53 (Fla. 5th DCA 2004) 107 Id. 108 Id. 109 Fla. Stat. § 1002.22 (2009). (At the time of this case, the statute was numbered 228.093.) 110 Human Rights Advocacy Committee for Developmental Services for District VIII v. Lee County School Board 457 So.2d 522 (Fla. 2nd DCA 1984) 111 Id.

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` 48 session. 112 The bill was passed and enacted into law. 113 S ection 17 of C h. 84 226 was written to provide district human rights committees the right to access pertinent information from other governmental agencies, excluding law enforcement or judicial authorities. 114 Again, in this narrow judicial interpretation, Florida statute 228.093 prov ided a great degree of privacy regarding student records. F.A.T v. State of Florida F.A.T distinguishe d FERPA allowances from Florida statute 1002.22. 115 Within the code of regulations that guides FERPA, there is a section that specifically allows sharing of information amongst agencies such as educational agencies and the juvenile justice system. 116 However, in F.A.T ., juvenile defendants argued that their attendance records could not be released without their consent in accordance with Florida statute 228.093 117 The court agreed with the defendants and reversed a lower court decision thereby vacating a contempt of court charge that was levied 118 This case demonstrates a narrower interpretation of the Florida statute, versus the federal act. 112 Cf., Op. Att'y Gen. Fla. 87 08 113 Id. 114 Id. 115 F.A.T. v. State of Florida 690 So. 2d 1347 (Fla. 1st DCA 1997 ) 116 See Appendix B, § 99.38. 117 F.A.T. v. State of Florida 690 So. 2d 1347 (Fla. 1st DCA 1997) 118 Id.

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` 49 Florida Department of Education v. Cooper Cooper differentiates testing materials from tests scores. 119 The first court of appeals orida Department of Education to release test booklets to the parents who had requested them. 120 Test scores are defined by FERPA as well as state statute as part of a student record. 121 Standardized test instruments, as defined by Cooper are not a part of a student record. 122 Johnson v. Deluz Boundaries are further defined as to what constitutes a student record in Deluz 123 Deluz held that some records maintained by an educational institution or agency that include identifiable student information may not be s tudent records. 124 In this case, the investigation of a school principal included identifiable student information. 125 The court noted that these records must be redacted prior to public scrutiny. 126 Summary of Florida Case Law Florida courts have differed with FERPA when deciding issues related to student records. WFTV held that student records in whole could not be released to media, including video surveillance. F.A.T. differentiated rights granted by FERPA from rights granted by Florida State Statute 1002.22. F.A.T. reversed a lower court decision and determined that information could not 119 Florida Department of Education v. Cooper 858 So. 2d 394 (Fla. 1st DCA 2003) 120 Id. 121 See Appendices A and C. 122 Florida Department of Education v. Cooper 858 So. 2d 394 (Fla. 1st DCA 2003) 123 Johnson v. Deluz 875 So. 2d 1 (Fla. 4th DCA 2004) 124 Id. 125 Id. 126 Id.

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` 50 be shared between educational institutions and the department of juvenile justic e without consent of parents or eligible students. Human Rights Advocacy Committee for Developmental Services led to a change in Florida law that allowed district human rights committees to receive information from school districts. Cooper further defined student records. Test protocols, as decided in Cooper were not student records. Deluz placed boundaries upon student records. Records that are determined to not be student records but include identifiable student information must have identifiable stud ent information redacted prior to disclosure to other persons or agencies. Legal Literature L aw reviews such as the have weighed in regarding FERPA issues, including how FERPA has changed since 1974 127 Rothberg specifie d the amendments to FERPA throughout the years. Most notably, FERPA has been amended a few months after its enactment, in 1979 in order to permit auditors access to student records, in 1990 to allow victims of violent crimes access to disciplinary records, in 1 994 to give teachers additional information about students, in 1998 to allow the Attorney General access to student records for law enforcement purposes, in 2000 to allow schools to reveal sex offenders who were registered at their institution, and in 2001 when the Patriot Act was instituted. 128 Rothberg was of the view that a lthough FERPA has changed throughout the years, the changes have not strengthened th e act. 129 The call for increased FERPA scrutiny is echoed in statements such as is high time some 127 District No. I 011 v. Falvo and the State Cardozo Women's L.J 9. (2002 2003): 27 66. 128 Id. 129 Id.

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` 51 light is shed on FERPA: The statute is often too vague to resolve the issue at hand, and oftentimes goes unenforced. 130 In another law review, the issue o f enforcing FERPA effectively wa s explored. 131 FERPA was created in an unusual manner, and has evolved into a policy that is difficult to interpret and harder to enforce. 132 Although created in 1974, it was only tangentially referenced within Supreme Court lit erature until 2002, when two Supreme Court cases, Gonzaga and Falvo were decided. 133 Gonzaga stripped FERPA of any personal rights to educational agencies non adherence to the act. 134 Falvo narrowed the scope of records that an educational agency maintains. 135 In some respects straightforward, and in others subtle, this pair of opinions significantly lessens FERPA's protection of student privacy. 136 At times, scrutiny of FERPA becomes intense. One author contends that grouping students together based upon test scores might be viewed as a FERPA violation, since the other students would have an idea regarding the performance of peers in the targeted academic assistance class. 137 However, the author goes on to conclude that inference of student performance is not phy sically 130 Id, p. 29. 131 Catholic University L aw Review, 58. (2008): 59 113. 132 Id. 133 Id. 134 Id. 135 Id. 136 Id, p. 62. 137 Ferpa Prohibits Cutting Widener Law Journal 19, no. 1 (October 2009): 215 276.

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` 52 accessing student records. 138 139 The argument that FERPA should be amended to match the congressional intent of the act is one that is made by at least one note 140 Both case law and c ongressional interpretation have weakened an act designed to protect student record privacy. 141 By specifically defining what a student record is and by allowing a private cause of action for FERPA violations, the act would be strengthened and provide more p rotection for students. 142 Although FERPA has lost enforcement mechanisms as defined through case law some state constitutions and statutes have been crafted to provide a higher level of privacy of student records within that state. 143 Florida has one of the b roadest privacy regulations within its constitution. 144 one of the most exacting in the country. 145 Because Florida's privacy statutes made no provision for partial disclosure of such records and reports, the proposed redaction would still not fulfill the legal restrictions on disclosure. 146 This is an example of how the Florida statute regarding student 138 Id. 139 Id, p. 252. 140 Note, The Family Educational Rights & Privacy Act of 1974: Recommendations For Realigning Educational Creighton Law Review 41, no. 2 (February 2008): 277 314. 141 Id. 142 Id. 143 West Virginia Law Review 108. (2005): 361 394. 144 Id. 145 Stuart, p. 369. 146 Id, p. 372.

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` 53 records provides more protection for students than the fe deral act. 147 Although FERPA has been deemed ineffectual in terms of enforcement mechanisms, it would be extremely detrimental for educational institutions within Florida to ignore state statute in regard to student record privacy. 148 Educational Literature Educational administrators must carefully weigh information that can be disclosed with student privacy rights. 149 As the author in the previous law review indicated, state laws can be more restrictive than FERPA in terms of information that can be released about students. 150 However, there are times when public requests for information, such as disciplinary issues, can be challenging to interpret. 151 Careful scrutiny about the release of information that does not identify a specific student can be permitted, bas ed upon the situation. 152 Educational journals that are read by professionals within the education sector often guide administrators as to what can and cannot be disclosed regarding students and their records. Journals of education examine issues pertinent t o the proper administration of education. Prior to the Supreme Court decision in Falvo at least one article discussed the ramifications of the case in the 10 th Circuit Court of Appeals. 153 At that juncture, the court held that peer grading was a practice that was not aligned with FERPA. 154 Although the Supreme Court eventually overturned 147 Id. 148 Id. 149 Jennifer K. Ander Principal Leadership (High School Edition) 4, no. 4 (December 2003): 67 70. 150 Id. 151 Id. 152 Id. 153 Phi Delta Kappan 82, no. 3 (November 2000): 253. 154 Id.

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` 54 that decision and permitted the practice of peer grading, this decision placed a limitation albeit tempo rarily and only in six states on a pedagogical practice that could be widely used. 155 With the Supreme Court overturning the 10 th Circuit Court of Appeals decision in Falvo the power to determine what instructional methods would be allowed in the schools was returned to the schools. 156 157 Had the 10 th Circuit Falvo decision been upheld by the Supreme Court, schools might have been more accountable to parents and the general public as to the specific types of instructional practices utilized within the school day. 158 Schools are consistently concerned with preserving student safety and simul taneously preserving student rights. 159 Profiling can be a useful technique to identify potentially violent students prior to committing acts of violence within the school setting. 160 In response to school shootings, this method has been purported to be useful yet can be dubious if these profiles become part of the student educational record. 161 Because educational institutions are very different entities than an airport, financial institution, or other public place (due to the privacy rights of students 155 Id. 156 Charles J. R Education & the Law 14, no. 3 (2002): 181 187. 157 Id, p. 185. 158 Id. 159 Psychology in the Schools 38, no. 2 (March 2001): 141. 160 Id. 161 Id.

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` 55 versus the privacy rights of the public as a whole), the use of profiling within the educational setting is debatable. 162 Chapter Summary FERPA was created in an unusual manner, as an amendment to other legislation on the floor of the Senate. Although created as almost an after thought, case law has helped to define the limitations of this federal act. FERPA offers four basic rights to students in regard to the privacy of student records. These four rights include the right for parents or eligible students to ac cess their educational r ecords, challenge inaccuracies, and consent to release of records to third parties, and the right to file a complaint with the Family Policy Compliance Office if these rights have been violated. ecord privacy is more specific than the federal act. The rights afforded students within the state statute mirror FERPA rights, as well as provide more specificity for the manner in which school districts must administer the statute. Case law has not onl 1002.22. Law reviews and educational literature have focused upon student privacy rights and how those rights impact the manner in which students are instructed as well as what types of activities are permissible within the educational setting. 162 Id.

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` 56 CHAPTER 3 POLICY CONTENT Methodology Due to the fact that Florida school board policies about student records were documents that contained a large amount of text a procedure for evaluating these types of documents was necessary. The procedure used was systematic. This procedure is called document analysis. 1 Document analysis can be defined as a process where documents are selected, evaluated, and the information co ntained within the documents is synthesized. 2 The researcher gathered the policies from all public Florida K 12 school districts through the school district websites, as well as communicating with officials within districts where policies were not housed o n the district website. When the policy was not found on a district website, the researcher was able to gain access to the policy through email communication with district officials. After securing all sixty seven school board policies regarding public re cords, the researcher created a matrix that was an array of policy components and FERPA and Florida State Statute 1002.22 characteristics. Through use of this matrix, the researcher could determine which components of the federal and state legislation were included within the district policy. This was accomplished through skimming, thorough reading, and interpretation of policies. Thematic analysis was conducted in order to determine if the policies incorporated the required components of FERPA and Florida State Statute 1002.22. The methodology utilized to analyze the policies included within this study was the most appropriate type of process that can be utilized with documents that have been previously written. 1 Qualitative Research Journal 9, no. 2 (January 1, 2009): 27 40. 2 Id.

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` 57 The benefits of document analysis include efficiency, availability, stability, exactness, cost effectiveness, lack of reaction, and coverage. 3 Policy Components Though FERPA was the initial factor in beginning student records confidentiality, Florida state statute 1002.22 is much more specific in regard to what, specifically, must be contained within school board policy. Within FERPA are four main components that must be intrinsic within the policy. Within the state statute are twelve components that must be within school board policies. One of these elements, the right to challenge inaccuracies, overlaps both policies. Therefore, if the policy addresses the right to challenge inaccuracies it has met both the FERPA and the state statute requirement. Thus, the analysis began wi th that specific component. The Right to Challenge Inaccuracies Thirty of the sixty seven districts within Florida include d the right to challenge inaccuracies within the policy on student records itself. Both Okaloosa County School District and Orange County Public Schools had not just one policy on student records, bu t multiple policies about student records within the district policy manual. 4 Jefferson County School District for example, has an entire section devoted to the process of challenging th e accuracy of information contained within the student record. Charlotte County Public Schools and The District School Board of Collier Count y for example, mentioned the right to challenge, but did not include information for how the challenge was to take place. 3 Id. 4 See Okaloosa County Schools Chapter 5 Policies 5 1 through 5 12 and O range County Schools Policy JRA, titles: Improper Use of School Records, Legal Name of Student, The Permanent Cumulative Pupil Record, Discipline Records, Directory Information, Person Standing In Loco Parentis to Student, Access to Student Records, and Right to Contest the Content s of Student Records.

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` 58 The districts that included a provision for challenging information contained within the student record we re listed in Table 3 1 These districts met two of the sixteen elements that were included in both FERPA and Florida state statute 1002.22. T he Right to Access Records Parents and Eligible Students The most fundamental right contained within FERPA is the right for parents and eligible students to access student records. Sarasota County Schools Seminole County Public Schools and St. Johns County School District contained the right to access records in a policy separate from the student records policy. Thirty three of the sixty seven Flo rida districts included a provision for the right to access records. These districts we re listed in Tabl e 3 2. The Right to Consent to Release Records to Third Parties Parents and eligible students can permit access to student records with written consent. Santa Rosa County School District the District School Board of Madison County and the School District of Osceola County contained the right to consent to access to records to a third party only within the section regarding release of Social Security Numbers. Thirty t wo of the sixty seven Florida districts included a provision for the right to consent to release records to third parties These districts we re listed in Table 3 3. The Right to File a Complaint with the Family Policy Compliance Office Parents and eligible students have the right to file a complaint with the United States Department of Educa tion specifically the Family Compliance Office (FPCO) if believe d that the educational institution has not followed the provisions contained within FERPA This provision inherent within FERPA is the provision that is least referenced within school board policies within the state of Florida. Only seven of the sixty seven Florida districts included a provision for the right to file a complaint with the FPCO These districts we re listed in Table 3 4

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` 59 Annual Written Notice According to Florida State Statute 1002.22, educational records that shall include: provisions for annual written notice other notices necessa ry to inform the adult students or the parent or guardian of students of their rights as defined in Section 1002.22(2), F.S., and FERPA. 5 In addition, it is the responsibility of the district to develop methods for notifying parents or guardians who canno 6 One district the School District of Osceola County included this provision within a Twenty six of the sixty seven Florida districts included a provision for annual written notice. These districts we re listed in Table 3 5 Timely Access 7 timely access to educational records once a request has been made. While FERPA states that the parent, guardian, or eligible student must received access within forty five days 8 Florida State Statute narrows the window to thirty days. 9 T here were three districts : Baker County School District Glades County School District and Nassau District Schools that adhered to the FERPA requirement of forty five days However, t his did not conform to the Florida State Statute 1002.22, which specified thirty days for accessing edu cational records. One district Brevard Public Schools simply states a mutually agreed upon time, which did not fall within the specified thirty day requirement. Polk County Public Schools narrowed the days for 5 See Appendix D, section 6. 6 Id. 7 Id. 8 See Appendix B, § 99.10 9 See Appendix D, section 6.

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` 60 access to fifteen, which fell within the r equired thirty days. Seventeen of the sixty seven Florida districts included a provision for timely access within thirty days. These districts we re listed in Table 3 6 Exercising Waiver of Rights According to Florida State Statute 1002.22, each district educational records that shall include to exercise the right of waiver of access to confidential letters or statements. 10 There were eighteen districts that specifically included this waiver of rights to confidential letters or statements. Baker County School District which did not specifically state a waiver of rights to confidential letters or statements did tangentially reference future institutions (t o which these letters or statements typically are sent). Several districts which include references to a procedural manual for student records may or may not include this within the procedural manual. However, since this was not included within the polic y itself, these districts c ould not be included as adhering to this specific provision within Florida State Statute 1002.22. Eight een of the sixty seven Florida districts included a provision for a waiver of rights for confidential letters or statements. These districts we re listed in Table 3 7 Schedule of Fees/Charge for Copies educational records that shall include a schedule of fees and charges for copies of ed ucation records which charges no more than the fees and charges for public records as set forth in Section 119.07, F.S. 11 These fees cannot be more than the cost to the district to reproduce the records. 12 There were nine districts that specifically included a schedule of fees within policies. Ten districts 10 Id. 11 Id. 12 Id.

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` 61 referenced fees and another fee schedule, but did not include the specific amount for copies within the policy. Several districts which include references to a procedural manual for student records may or may not include this within the procedural manual. However, since this was not included within the policy itself, these districts c ould not be included as adhering to this specific provision within Florida State Statute 1002.22. Nin e of the sixty seven Florida districts included a specific schedule of fees within the policy. These districts we re listed in Table 3 8 Listing Types/Locations of Records/Titles and Addresses of Record Officials According to Florida State Statute 1002.22, each district is educational records that shall include a listing of the types and locations of education records maintained by the educational agency and the titles and addresses of the officials responsible for those records 13 There were nine districts that specifically included a listing of types of records and the titles/addresses of record officials. Six districts referenced either the location of the records, or how to find the listing of the record officials and their addresses Several districts which include references to a procedural manual for student records may or may not include this within the procedural manual. However, since this was not included within the polic y itself, these districts c ould not be included as adhering to this specific provision within Florida State Statute 1002.22. The districts that specifically delineated this provision we re listed in Table 3 9 Disclosure Prior Written Consent Not Required educational records that shall include p rovisions for disclosure of personally identifiable information where prior written consent of the adult student or the pa rent or guardian of students is 13 Id.

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` 62 not required 14 There were twenty two districts that specifically listed when personally identifiable information could be released without consent Orange County Public Schools referred to the state statute, but did not de scribe the situations when personally identifiable information could be released without the consent of the parent or eligible student. Baker County School District hinted at this in regard to Social Security Numbers, but could not be included amongst thos e districts that did meet this provision. Several districts which include references to a procedural manual for student records may or may not include this within the procedural manual. However, since this was not included within the policy itself, these districts could not be included as adhering to this specific provision within Florida State Statute 1002.22. The districts that specifically delineated this provision we re listed in Table 3 10 Disclosure Prior Written Consent Required According to Flori educational records that shall include p rovisions for disclosure of personally identifiable information where prior written consent of the adult student or the parent or guardian of students is required, as are provisions for maintaining records of requests and disclosures 15 There were twenty four districts that specifically defined when personally identifiable information could be released with consent. Baker County School District generally referred to when consent is required, but was not specific as to the situations when personally identifiable information could be released with the consent of the parent or eligible student. Therefore, Baker County Sc hool District could not be included amongst those districts that did meet this provision. Several district s which include d references to a procedural manual for student records may or may not include this within 14 Id. 15 Id.

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` 63 the procedural manual. However, since this was not included within the policy itself, these districts could not be included as adhering to this specific provision within Florida State Statute 1002.22. The district s that specifically delineated this provision we re listed in Table 3 11 Maintenance a nd Security of Records educational records that shall include p rovisions for maintenance and security of student records, including procedures to ensure the confid entiality of student records and safeguard records from unauthorized or unintentional access 16 There were forty districts that alluded to the maintenance and security of education records. Baker County School District Lake County Schools the District School Board of Madison County Marion County Public Schools Okeechobee County Schools and the School District of Osceola County referred to control and supervision of student records, which could be construed as maintenance and security Charlotte Count y Public Schools had a section devoted to maintenance of student records, but it was very brief. Several district s which include references to a procedural manual for student records may or may not include this within the procedural manual. However, since this was not included within the policy itself, these district s could not be included as adhering to this specific provision within Florida State Statute 1002.22. The districts that specifically delineated this provision we re listed in Table 3 12 Health/ Safety Emergencies educational records that shall include p rovisions for disclosure of personally identifiable information in health and safety emergencies 17 There were twenty two districts that specifically provided for disclosure of personally identifiable information in the event of a health or safety 16 Id. 17 Id.

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` 64 emergency. Several districts which include references to a procedural manual for student records may or may not include this within the procedural manual. However, since this was not included within the policy itself, these districts could not be included as adhering to this specific provision within Florida State Statute 1002.22. The districts that specificall y delineated this provision we re listed in Table 3 13 Directory Information educational records that shall include p rovisions for disclosure of directory informat ion. 18 There were eleven districts that had a separate policy that was solely devoted to directory information. Twenty five other districts included a provision for directory information within the district student records policy. Altogether, there were thirty six districts that included a provision for disclosure of directory information. Several districts which include references to a procedural manual for student records may or may not include this within the procedural manual. However, since this wa s not included within the policy itself, these districts could not be included as adhering to this specific provision within Florida State Statute 1002.22. The districts that specifically delineated this provision we re listed in Table 3 14 Periodic Review /Elimination educational records that shall include p rovisions for ensuring the accuracy of information maintained and for periodic review and elimination of information no longer useful, in the manner prescr ibed by Section 1001.52(3), F.S 19 There were sixteen districts that included provisions for periodic review and elimination of information that is not current within the student record 18 Id. 19 Id.

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` 65 Several districts which include references to a procedural manual for student records may or may not include this within the procedural manual. However, since this was not included within the policy itself, these districts could not be included as adhering to this specific provision within Florida State Statute 1002.22. The districts that specifically delineated this provision we re listed in Table 3 15 Chapter Summary Thirty of the sixty seven Florida school districts had information within policies regarding the right t o challenge inaccuracies, which was included in both FERPA and Florida State Statute 1002.22. Thirty three of the sixty seven Florida school districts included the FERPA provision that parents or eligible students could access student records. Three of th e thirty three school districts included this provision within a separate policy. This, however, did qualify as having a policy that included a provision for parents or eligible students to access educational records. The third FERPA provision, the right for parents or eligible students to grant consent for the release of educational records to third parties, was included in thirty two school district policies. Three of these thirty two districts only included this provision in the section regarding Socia l Security Numbers. The final provision of FERPA, the right to file a complaint with the FPCO, was included within the policies of only seven of the sixty seven Florida school districts. Seventeen of the sixty seven Florida districts included a provision f or timely access within thirty days, as Florida State Statute 1002.22 dictates. Three additional districts included a provision that mentions forty five days, as FERPA states, but this does not meet the criteria set by the state statute. Eighteen district s included the provision for waiver of rights and nine districts included specific fees charges for copies of records. There were ten additional districts that referenced a fee for copies of records, but did not include the actual schedule of fees or char ges. Nine of the sixty seven districts included the individuals responsible for maintaining records along with the titles and addresses of these

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` 66 individuals Six additional districts referenced the locations and titles but did not detail these specifically. Twenty two districts list ed the specific times when prior written consent wa s not required to provide personally identifiable information within student records. One district referenced Florida State Statute 1002.22, but did not specifically detail the situations where written consent wa s not required. Twenty four districts included the provision for when written consent wa s required. One additional dis trict generally referenced this within the discussion about access to student educational records. Thirty three districts detailed the maintenance and supervision of student records. Six additional districts reference this under control and supervision an d one other district reference d this briefly. Twenty two districts include d a provision for release of information contained within student records in health or safety emergencies. Twenty five districts included a provision for the release of directory in formation. Eleven additional districts reference d this within a separate policy. Sixteen districts included a provision for periodic review and elimination of material within the student educational record. The Florida State Statute 1002.22 has multiple components that must be included within the school district policies. Without the provision for challenging inaccuracies, which spanned both FERPA and Florida State Statute 1002.22, there are eleven components within the Statute 1002.22 which are require d, according to the statute, to be included within the district policy. Twenty six of the sixty seven Florida districts included the provision for annual written notice. One of these twenty six districts included this provision within a separate policy. Of the four FERPA components and twelve state statute components, the Summary Table is entitled Table 3 16 The table details each component and whether the school district includes the specified component within the school district policy. A key to the table column elements follows the Summary Table

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` 67 Table 3 1. List of districts that included provisions for challenging inaccuracies of information contained within a student record District Policy Number FERPA Right to Challenge Inaccuracies 1002.22 Provision challenging inaccuracies Alachua 8330 YES YES Baker 5.19 YES YES Bay 7.304 YES YES Brevard 5.19 YES YES Broward 8330 YES YES Charlotte 5100.1 YES YES Collier 5.7 YES YES Dade 8330 YES YES De Soto 5.7 YES YES Glades 4.25 YES YES Hendry 8330 YES YES Hernando 5.15 YES YES Hillsborough 8330 YES YES Jefferson § 190.13 YES YES Lee 5.19 YES YES Leon 5.7 YES YES Levy 7.05 YES YES Manatee 530 YES YES Martin 5.7 YES YES Monroe 5.7 YES YES Nassau No number YES YES Okaloosa 5.7 YES YES Orange 5.19 YES YES Palm Beach 327 YES YES Pasco 5.7 YES YES Pinellas 5.7 YES YES Polk 8330 YES YES Putnam 8330 YES YES Union 5.19 YES YES Volusia 4.19 YES YES

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` 68 Table 3 2. List of districts that included provision for accessing information contained within a student record District Policy Number F ERPA Right to Access Sarasota 5.7 YES SEPARATE POLICY Seminole 5.7 YES SEPARATE POLICY St. Johns 5.19 YES SEPARATE POLICY Alachua 8330 YES Baker 5.19 YES Bay 7.304 YES Brevard 8330 YES Broward 5100.1 YES Charlotte 8330 YES Collier 8330 YES Dade 8330 YES De Soto § 190.13 YES Glades No Number YES Hendry 327 YES Hernando 5.7 YES Hillsborough 8330 YES Jefferson 7.402 YES Lee 4.19 YES Leon 3.21 YES Levy 5.19 YES Manatee 5.9 YES Martin 8330 YES Monroe 8330 YES Nassau 5.79 YES Okaloosa 5 1 through 5 12 YES Orange JRA YES Palm Beach 5.5 YES Pasco 8330 YES Pinellas 8330 YES Polk 4.005 YES Putnam 5.19 YES Union 5.19 YES Volusia 201 YES

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` 69 Table 3 3. List of districts that included provision for consent to release records to third parties District Policy Number F ERPA Consent to Release to third parties Santa Rosa 5.7 YES BUT ONLY IN SECTION ABOUT SSN'S Madison 5.16 YES BUT ONLY IN SECTION ABOUT SSN'S Osceloa 5.7 YES BUT ONLY IN SECTION ABOUT SSN'S Alachua 8330 YES Baker 5.19 YES Bay 7.304 YES Brevard 8330 YES Broward 8330 YES Collier 8330 YES Dade 8330 YES De Soto § 190.13 YES Glades No number YES Hendry 327 YES Hernando 5.7 YES Hillsborough 8330 YES Jefferson 7.402 YES Lee 4.19 YES Leon 3.21 YES Levy 5.19 YES Martin 8330 YES Monroe 8330 YES Nassau 5.79 YES Okaloosa 5 1 through 5 12 YES Orange JRA YES Palm Beach 5.5 YES Pasco 8330 YES Pinellas 8330 YES Polk 4.005 YES Putnam 5.19 YES St. Lucie 5.7 YES Union 5.19 YES Volusia 201 YES

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` 70 Table 3 4. List of districts that included provision to file a complaint with the FPCO District Policy Number F ERPA Right to file complaint with FPCO Bay 7.304 YES Broward 8330 YES Glades Unnumbered YES Hillsborough 8330 YES Monroe 8330 YES Nassau 5.79 YES Pinellas 8330 YES Table 3 5. List of districts that included provision for annual written notice District Policy Number 1002.22 Provision annual written notice Osceloa 5.7 YES SEPARATE POLICY Alachua 8330 YES Baker 5.19 YES Bay 7.304 YES Brevard 8330 YES Broward 5100.1 YES Charlotte 8330 YES Collier 8330 YES Dade 8330 YES De Soto § 190.13 YES Glades No number YES Hernando 5.7 YES Hillsborough 8330 YES Jefferson 7.402 YES Lee 4.19 YES Leon 3.21 YES Levy 5.19 YES Martin 8330 YES Monroe 8330 YES Okaloosa 5 1 through 5 12 YES Orange JRA YES Palm Beach 5.5 YES Polk 4.005 YES Putnam 5.19 YES Union 5.19 YES Volusia 201 YES

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` 71 Table 3 6. List of districts that included provision for timely access District Policy Number 1002.22 Provision timely access Polk 4.005 YES 15 DAYS Baker 5.19 YES BUT MENTIONS 45 DAYS, and STATE STATUTE SAYS 30 Glades No number YES BUT MENTIONS 45 DAYS AND STATE STATUTE SAYS 30 Nassau 5.79 YES BUT MENTIONS 45 DAYS AND STATE STATUTE SAYS 30 Jefferson 7.402 YES 30 DAYS Lee 4.19 YES 30 DAYS Leon 3.21 YES 30 DAYS Martin 8330 YES 30 DAYS Monroe 8330 YES 30 DAYS Okaloosa 5 1 through 5 12 YES 30 DAYS Palm Beach 5.5 YES 30 DAYS Putnam 5.19 YES 30 DAYS Collier 8330 YES 30 DAYS Dade 8330 YES 30 DAYS Union 5.19 YES 30 DAYS Volusia 201 YES 30 DAYS Bay 7.304 YES 30 DAYS Broward 8330 YES 30 DAYS Alachua 8330 YES 30 DAYS Hendry 327 YES 30 DAYS Brevard 8330 NO BUT STATES MUTUALLY AGREED UPON TIME

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` 72 Table 3 7. List of districts that included provision for waiver of rights District Policy Number 1002.22 Provision exercising waiver of rights Alachua 8330 YES Bay 7.304 YES Dade 8330 YES De Soto § 190.13 YES Hendry 327 YES Hernando 5.7 YES Hillsborough 8330 YES Jefferson 7.402 YES Lee 4.19 YES Leon 3.21 YES Levy 5.19 YES Martin 8330 YES Monroe 8330 YES Okaloosa 5 1 through 5 12 YES Orange JRA YES Palm Beach 5.5 YES Polk 4.005 YES Putnam 5.19 YES Table 3 8. List of districts that included schedule of fees District Policy Number 1002.22 Schedule of fees/charges for copies Alachua 8330 YES Bay 7.304 YES Broward 5100.1 YES Hendry 327 YES Hernando 5.7 YES Jefferson 7.402 YES Lee 4.19 YES Okaloosa 5 1 through 5 12 YES Palm Beach 5.5 YES Polk 4.005 NO GENERALLY BUT NO SPECIFIC FEES LISTED REFERS TO S CHEDUL E Putnam 5.19 NO GENERALLY, BUT NO SPECIFIC FEES LISTED Baker 5.19 NO GENERALLY, BUT NO SPECIFIC FEES LISTED Brevard 8330 NO GENERALLY, BUT NO SPECIFIC FEES LISTED Union 5.19 NO GENERALLY, BUT NO SPECIFIC FEES LISTED Hillsborough 8330 NO GENERALLY, BUT NO SPECIFIC FEES LISTED Leon 3.21 NO GENERALLY, BUT NO SPECIFIC FEES LISTED Martin 8330 NO GENERALLY, BUT NO SPECIFIC FEES LISTED Nassau 5.79 NO GENERALLY, BUT NO SPECIFIC FEES LISTED Orange JRA NO GENERALLY, BUT NO SPECIFIC FEES LISTED

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` 73 Table 3 9. List of districts that list types of records, officials, titles and addresses District Policy Number 1002.22 Listing types & locations of records and titles and addresses Alachua 8330 YES Brevard 8330 YES Collier 8330 YES Dade 8330 YES Hendry 327 YES Hillsborough 8330 YES Lee 4.19 YES Monroe 8330 YES Palm Beach 5.5 YES Polk 4.005 YES GENERALLY MENTIONS WHERE TO FIND INFO Levy 5.19 YES GENERALLY (LISTING WILL BE MAINTAINED) De Soto § 190.13 VERY GENERAL WILL MAINTAIN A LISTING Okaloosa 5 1 through 5 12 VERY GENERAL LOCATION ONLY REFERENCED Putnam 5.19 REFERENCED BRIEFLY, NOT DESCRIBED Volusia 201 REFERENCED BRIEFLY, NOT DESCRIBED Table 3 10. List of districts that detail the situations when prior written consent not required District Policy Number 1002.22 Provisions disclosure information where prior written consent not required Orange JRA YES VERY GENERAL, REFERS TO 1002.22 Alachua 8330 YES Bay 7.304 YES Brevard 8330 YES Broward 5100.1 YES Dade 8330 YES De Soto § 190.13 YES Glades No number YES Hendry 327 YES Hernando 5.7 YES Hillsborough 8330 YES Jefferson 7.402 YES Lee 4.19 YES Leon 3.21 YES Levy 5.19 YES Martin 8330 YES Monroe 8330 YES Okaloosa 5 1 through 5 12 YES Palm Beach 5.5 YES Polk 4.005 YES Putnam 5.19 YES Union 5.19 YES Volusia 201 YES

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` 74 Table 3 11. List of districts that detail the situations when prior written consent required District Policy Number 1002.22 Provisions disclosure where prior written consent required Alachua 8330 YES Bay 7.304 YES Brevard 8330 YES Broward 5100.1 YES Dade 8330 YES De Soto § 190.13 YES Glades No number YES Hendry 327 YES Hernando 5.7 YES Hillsborough 8330 YES Jefferson 7.402 YES Lee 4.19 YES Leon 3.21 YES Levy 5.19 YES Martin 8330 YES Monroe 8330 YES Okaloosa 5 1 through 5 12 YES Orange JRA YES Palm Beach 5.5 YES Pasco 8330 YES Polk 4.005 YES Putnam 5.19 YES Union 5.19 YES Volusia 201 YES Baker 5.19 NOT SPECIFIC, G ENERALLY DETAILS ACCESS SECTION

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` 75 Table 3 12. List of districts that detail maintenance and supervision of records District Policy Number 1002.22 Provision maintenance and security of records Baker 5.19 YES CONTROL AND SUPERVISION Lake 5.7 YES CONTROL AND SUPERVISION Madison 5.16 YES CONTROL AND SUPERVISION Marion 5.7 YES CONTROL AND SUPERVISION Okeechobee 5.5 YES CONTROL AND SUPERVISION Osceloa 5.7 YES CONTROL AND SUPERVISION Charlotte 8330 YES BRIEF Alachua 8330 YES Bradford 8330 YES Clay 4.25 YES Collier 8330 YES Dade 8330 YES De Soto § 190.13 YES Escambia 7.05 YES Hardee 5.5 YES Hendry 327 YES Hernando 5.7 YES Hillsborough 8330 YES Indian River 5.35 YES Jackson 5.7 YES Jefferson 7.402 YES Lee 4.19 YES Leon 3.21 YES Levy 5.19 YES Liberty 5.7 YES Manatee 5.9 YES Martin 8330 YES Monroe 8330 YES Nassau 5.79 YES Okaloosa 5 1 through 5 12 YES Orange JRA YES Polk 4.005 YES Putnam 5.19 YES Santa Rosa 5.7 YES Sarasota 5.7 YES Seminole 5.7 YES St. Johns 5.19 YES St. Lucie 5.7 YES Union 5.19 YES Volusia 201 YES

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` 76 Table 3 13. List of districts that include provision for health/safety emergencies District Policy Number 1002.22 Provision disclosure emergencies Baker 5.19 YES Alachua 8330 YES Bay 7.304 YES Brevard 8330 YES Broward 5100.1 YES Charlotte 8330 YES Dade 8330 YES De Soto § 190.13 YES Hendry 327 YES Hernando 5.7 YES Hillsborough 8330 YES Jefferson 7.402 YES Lee 4.19 YES Leon 3.21 YES Levy 5.19 YES Martin 8330 YES Monroe 8330 YES Okaloosa 5 1 through 5 12 YES Palm Beach 5.5 YES Polk 4.005 YES Putnam 5.19 YES Union 5.19 YES

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` 77 Table 3 14. List of districts that include provision for directory information District Policy Number 1002.22 Provision disclosure directory information Baker 5.19 YES SEPARATE POLICY Bradford 5.19 YES SEPARATE POLICY Columbia 5.15 YES SEPARATE POLICY Dixie 5.19 YES SEPARATE POLICY Flagler 530 YES SEPARATE POLICY Gilchrist 5.19D YES SEPARATE POLICY Hamilton 5.19 YES SEPARATE POLICY Osceloa 5.7 YES SEPARATE POLICY Sarasota 5.7 YES SEPARATE POLICY Seminole 5.7 YES SEPARATE POLICY St. Johns 5.19 YES SEPARATE POLICY Alachua 8330 YES Bay 7.304 YES Charlotte 8330 YES Collier 8330 YES Dade 8330 YES De Soto § 190.13 YES Glades No number YES Hendry 327 YES Hernando 5.7 YES Hillsborough 8330 YES Jefferson 7.402 YES Lee 4.19 YES Leon 3.21 YES Levy 5.19 YES Martin 8330 YES Monroe 8330 YES Nassau 5.79 YES Okaloosa 5 1 through 5 12 YES Orange JRA YES Palm Beach 5.5 YES Pasco 8330 YES Polk 4.005 YES Putnam 5.19 YES St. Lucie 5.7 YES Volusia 201 YES

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` 78 Table 3 15. List of districts that include provision for review/elimination District Policy Number 1002.22 Provision periodic review/elimination Alachua 8330 YES Bay 7.304 YES Brevard 8330 YES Collier 8330 YES Dade 8330 YES Hillsborough 8330 YES Leon 3.21 YES Levy 5.19 YES Manatee 5.9 YES Monroe 8330 YES Okaloosa 5 1 through 5 12 YES Pinellas 8330 YES Polk 4.005 YES Putnam 5.19 YES Union 5.19 YES Baker 5.19 YES

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79 Table 3 1 6 Summary Table District Policy Number 1 (F) a 2 (F) b 3 (F) c 4 (F) d 5 (SS) e 6 (SS) f 7 (SS) g 8 (SS) h 9 (SS) i 10 (SS) j 11 (SS) k 12 (SS) l 13 (SS) m 14 (SS) n 15 (SS) o 16 (SS) p Alachua 8330 X X X X X X X X X X X X X X X Baker 5.19 X X X X X X X X X X Bay 7.304 X X X X X X X X X X X X X X X Bradford 5.19 X Brevard 8330 X X X X X X X X X X X Broward 5100.1 X X X X X X X X X X X Calhoun 5.7 Charlotte 8330 X X X X X X X Citrus 5.7 Clay 4.25 X Collier 8330 X X X X X X X X X X Columbia 5.15 Dade 8330 X X X X X X X X X X X X X X De Soto § 190.13 X X X X X X X X X X X Dixie 5.19 Duval 5.7 Escambia 7.05 X Flagler 530 Franklin 5.7 Gadsden 5.7 Gilchrist 5.19D Glades No number X X X X X X X X X Gulf 5.7 Hamilton 5.19 Hardee 5.5 X Hendry 327 X X X X X X X X X X X X X

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80 Table 3 16. Continued District Policy Number 1 (F) a 2 (F) b 3 (F) c 4 (F) d 5 (SS) e 6 (SS) f 7 (SS) g 8 (SS) h 9 (SS) i 10 (SS) j 11 (SS) k 12 (SS) l 13 (SS) m 14 (SS) n 15 (SS) o 16 (SS) p Hernando 5.7 X X X X X X X X X X X X Highlands 5.7 Hillsborough 8330 X X X X X X X X X X X X X X Holmes 5.7 Indian River 5.35 X Jackson 5.7 X Jefferson 7.402 X X X X X X X X X X X X X Lafayette 5.19 Lake 5.7 X Lee 4.19 X X X X X X X X X X X X X X Leon 3.21 X X X X X X X X X X X X X X Levy 5.19 X X X X X X X X X X X X Liberty 5.7 X Madison 5.16 X X Manatee 5.9 X X X X X Marion 5.7 X Martin 8330 X X X X X X X X X X X X Monroe 8330 X X X X X X X X X X X X X X X Nassau 5.79 X X X X X X X Okaloosa 5 1 through 5 12 X X X X X X X X X X X X X X Okeechobee 5.5 X Orange JRA X X X X X X X X X X Osceloa 5.7 X X Palm Beach 5.5 X X X X X X X X X X X X X Pasco 8330 X X X X X X Pinellas 8330 X X X X X X

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81 Table 3 16. Continued District Policy Number 1 (F) a 2 (F) b 3 (F) c 4 (F) d 5 (SS) e 6 (SS) f 7 (SS) g 8 (SS) h 9 (SS) i 10 (SS) j 11 (SS) k 12 (SS) l 13 (SS) m 14 (SS) n 15 (SS) o 16 (SS) p Polk 4.005 X X X X X X X X X X X X X Putnam 5.19 X X X X X X X X X X X X X Santa Rosa 5.7 X X X X X Sarasota 5.7 X Seminole 5.7 X St. Johns 5.19 X St. Lucie 5.7 X X X Sumter 5.7 Suwannee 5.19 Taylor 5.15 Union 5.19 X X X X X X X X X X X Volusia 201 X X X X X X X X X X Wakulla 5.7 Walton 5.7 Washington 5.7 a FERPA Right to Access b FERPA Right to Challenge Inaccuracies c FERPA Consent to Release to third parties d FERPA Right to file complai nt with FPCO e 1002.22 Provision annual written notice f 1002.22 Provision timely access g 1002.22 Provision exercising waiver of rights h 1002.22 Schedule of fees/charges for copies i 1002.22 Listing types & locations of records and titles and addresses of record officials j 1002.22 Provisions disclosure personally identifiable information where prior written consent not required k 1002.22 Provisions disclosure personally identifiable information where prior written consent required l 1002.22 Provision maintenance and security of records m 1002.22 Provision disclosure personally identifiable info in health/safety emergencies n 1002.22 Provision disclosure directory information o 1002.22 Provision challenging inaccuracies p 1002.22 Provision periodic review/elimination and preserving accuracy

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82 CHAPTER 4 ANALYSIS OF FLORIDA PUBLIC K 12 SCHOOL DISTRICT S TUDENT RECORDS POLICIES The purpose of the study was to develop a model student records policy for Florida public school districts. Judicial decisions and opinions related to educational records were a particular focus. The analysis conducted in the study was two pronged. A revi ew of relevant case law, state statutes, and federal legislation resulted in two fundamental U.S Supreme Court decisions one pertinent Florida state statute, and one federal act which combined to form a better understanding of the requirements necessary in regard to educational records for students. In addition, current Florida public school district policies related to student records and related literature was collected from the sixty seven public school districts within Florida. Information gained from case law, legal and educational literature, and a comparison of policies to the tenets within both the federal act and state statute shaped the analysis of current Florida public school policies about student records. Analysis of Case Law Regarding FERPA Owasso Independent School District v. Falvo 1 and Gonzaga University v. Doe 2 we re the seminal cases that define the boundaries of FERPA. Falvo specifically defined the boundaries of 3 Gonzaga determined that FERPA does not create a right that is enforceable under 42 U.S.C. § 1983 4 In Falvo the definition of educational record is strictly defined so that FERPA would not apply to peer grading, as those grades are not yet a part of the teacher grade book, which is 1 Owasso Independent School District v. Falvo 534 U.S. 426 (2002). 2 Gonzaga University v. Doe 536 U.S. 273 (2002). 3 Owasso 534 U.S. 426 (2002). 4 Gonzaga 536 U.S. 273 (2002).

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83 where the educational record begins. This decision was in opposition to the decis ion made by the Tenth Circuit Court of Appeals which disallowed the practice of peer grading within the boundaries of the tenth circuit 5 judgment which placed an injunction on this grading p ractice. 6 in effect, reversed the reversal and affirmed the decision of the district court in order to allow the practice of peer grading to continue. 7 to a letter from the director of the FPCO where he specifically discussed the practice of peer grading. 8 Within the letter the director stated that these grades are not maintained by the educational institution and are not yet a part of the educational record. 9 Gonzaga def initively determined that there is no private right of action to individuals who believe that their privacy rights have been infringed upon by the educational institution. 10 The Supreme Court decided that the State Supreme Court had erred in its determinati on the nondisclosure provision creates a federal right enforceable under §1983. 11 This decision defined FERPA as spending clause legislation that help ed to determine how federal funds are spent and withheld, but d id not create a private right of action for individuals. 5 Falvo 229 F.3D 956 (10th Cir. 2000) 6 Id. 7 Owasso 534 U.S. 426 (2002). 8 Id. 9 Id. 10 Gonzaga 536 U.S. 273 (2002). 11 Id.

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84 Analysis of Florida Case Public K 12 School Districts Student Records Policies The researcher collected copies of student records policies and other related literature from the websites that each of t he sixty seven Florida school districts maintained. 12 Analysis was limited to the policies and other literature provided by the school districts. Each policy was analyzed in respect to compliance to FERPA components as well as Florida State Statute 1002.22 c omponents. Policies were as short as one paragraph and as long as twenty six pages. Although some school district policies came close to meeting all components, none of sixty seven districts met every one of the sixteen components embodied within FERPA a nd Florida State Statute 1002.22. The School Board of Alachua County Monroe County School District and Okaloosa Count y School District were the closest to meeting all of the components of both FERPA and Florida State Statute 1002.22 with 94 % (or fifteen out of sixteen) compliance with both the federal and state legislation. The only component that the School Board of Alachua County and the Okaloosa County School District did not comply with was the FERPA provision to file a complaint with the Family Poli cy Compliance Office. The Monroe County School District was lacking a schedule of fees or charges for copies as required by Florida State Statute 1002.22. 12 The researcher collected the following policies from the Florida K 12 public school districts: Leon County Schools Policy Number 3.21, Polk County Schools Policy Number 4.005, Lee County Schools Policy Number 4.19, Clay County Schools Policy Number 4.25, Columbia and Tay lor County Schools Policy Number 5.15, Madison County Schools Policy Number 5.16, Baker, Bradford, Dixie, Hamilton, Lafayette, Levy, Putnam, St. Johns, Suwanee and Union County Schools Policy Number 5.19, Indian River County Schools Policy Number 5.35, Oke echobee, Palm Beach, and Hardee County Schools Policy Number 5.5, Calhoun, Citrus, Duval, Franklin, Gadsden, Gulf, Hernando, Highlands, Holmes, Jackson, Lake, Liberty, Marion, Osceloa, St. Lucie, Santa Rosa, Sarasota, Seminole, Sumter, Wakulla, Walton, an d Washington County Schools Policy Number 5.7, Nassau County Schools Policy Number 5.79, Manatee County Schools Policy Number 5.9, Escambia County Schools Policy Number 7.05, Bay County Schools Policy Number 7.304, Jefferson County Schools Policy Number 7.402, Volusia County Schools Policy Number 201, Hendry County Schools Policy Number 327, Flagler County Schools Policy Number Broward County Schools Policy Number 5100.1, DeSoto County Schools Policy Number Broward County Schools Policy Number § 190.13, G ilchrist County Schools Policy Number 5.19D, Orange County Schools Policy Number JRA, Okaloosa County Schools Policy Chapter 5, Alachua, Brevard, Charlotte, Collier, Dade, Hillsborough, Martin, Monroe, Pasco, and Pinellas County Schools Policy Number 8330, and Glades County Schools Policy which was unnumbered but titled Student Records.

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85 Twenty one of the sixty seven Florida K 12 public school districts had policies that were so general that they did not specifically meet any of the sixteen components of FERPA and the state statute. These districts were Calhoun County School District Cit rus County Schools The School District of Clay County Columbia County School District Dixie District Schools Duval County Public Schools Flagler County Public Schools Franklin County District Schools Gadsden County Schools Gilchrist County School D istrict Gulf County Schools Hamilton County School District The School Board of Highland County Holmes District School Board Lafayette District Schools The District School Board of Sum ter County Suwannee County School Board Taylor County School Dis trict Wakulla County School District Walton County School District and Washington County School District Several of the policies of these twenty one districts referenced FERPA but did not specifically address what FERPA requires. In addition, many of the policies referenced another procedural manual. The researcher received several student records policy manuals. By analyzing each procedural manual, each of the components required in FERPA and the state statute were addressed. However, Florida Stat e [e] ach school board shall adopt a policy for educational records which shall include 13 and lists the twelve areas that are required to be included within the policy. Since procedural manuals are not policies that are formally adopted by each school board the researcher could not conlude that those districts met the provisions within the st atute. Ten of the sixty seven districts had policies that had been written by NEOLA. NEOLA, which was originally known as Northeastern Ohio Learning Association, is an organization that 13 See Appendix D, section 6.

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86 creates policies, guidelines, and procedures for school districts. 14 NEOLA operates in seven states: Florida, Indiana, Illinois, Ohio, Michigan, Wisconsin and West Virginia and has over eight hundred clients. 15 NEOLA utilizes state specific templates that include various options for each specific policy. 16 Proponents of this policy creating company cite ease of policy creation as a very worthwhile benefit. 17 Detractors cite cookie cutter type policies that do not address the unique aspects of the specific county. 18 liance to the components within FERPA and Florida State Statute 1002.22. Of the ten districts that used 94 % compliance and 38 % compliance. Two of the three districts who had the highest compliance rate of 94 % were districts that used NEOLA: the School Board of Alachua County and the Monroe County School District Miami Dade County Public Schools and Hillsborough County P ublic Schools complied with 88 % of the legislative components. Martin County School Distric t complied with 81 % of the legislative components. The compliance rates of the District School Board of Collier County Brevard Public Schools and Charlotte Count y Public Schools were 63 % 56 % and 44 % respectively. The lowest compliance rates of NEOLA w ritten policies were found in Pasco County Schools and Pinellas Count y Schools who both had compliance rates of 38 % The research question was: Are Florida K 12 public school board policies alig ned with FERPA, Florida Statute 1002. 22 and recent court decisions? Since none of the sixty seven 14 Student Press Law Center XXVII, no. 3 (Fall 2006): 11. 15 Id. 16 Id. 17 Id. 18 Id.

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87 districts met all of the characteristics within both FERPA and Florida Statute 1002.22 the conclusion must be made that Florida K 12 public school board policies are not aligned with the federal an d state legislation. In terms of recent court decisions within Florida, it has been noted that Florida courts have consistently interpreted decisions regarding student records narrowly, doing as much as possible to protect the confidentiality rights of stu dents within public K 12 educational institutions. It is for this specific reason that Florida public K 12 school districts should be advised to have student records policies tha t are inclusive of FERPA and Florida State Statute 1002.22 components in orde r to avoid costly litigation. Conclusions The research revealed that Florida public school districts were not adequately protected in regard to student records policies that incorporate the components of both FERPA and Florida State Statute 1002.22. Falv o and Gonzaga have helped to shape court opinions within Florida, as well as across the country. The manner in which decisions within the state of Florida have been made has been to interpret student records very narrowly. There were many significant conclusions drawn from the research. The first was that none of the Florida public school districts have a policy that was compliant with FERPA and Florida State Statute 1002.22. Because there were four components within FERPA and tw elve components of Flo rida State Statute 1002.22 a policy would need to meet all sixteen components of both pieces of legislation in order to be fully compliant. Three districts came within one component of compliance. These districts were the School Board of Alachua County Monroe County School District, and Okaloosa County School District. Another compelling conclusion was that districts that utilized outside companies, such as NEOLA, to provide policy templates did not meet complete legislative complaince similar to

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88 dis tricts that created policies. However, these ten districts in the top 43 % of districts in terms of ranked compliance. More than half of all Florida districts slightly over 62 % had compliance rates of less than 50 % By not adhering to all components within FERPA and Florida State Statute 1002.22 these school districts put themselves at a greater level of risk than those districts who had higher levels of compliance. Fifteen districts slightly over 22 % had complia nce rates of greater than 80 % Changes made in the areas where compliances were not noted would allow these districts to meet all components of FERPA and Florida State Statute 1002.22. Chapter Summary The policy analysis in this study revealed that none of the sixty seven Florida K 12 public school districts w ere in complete complaince with the four FERPA components and the twelve Florida State Statute 1002.22 components. The majority of districts had comp liance rates of less than 50 % with a small minority of districts who had over 80 % compliance. Based upon the case law decided in Florida, which is typically very narrowly viewed, it would greatly assist all districts to review policies related to student records and refine policies to meet compliance with both pieces of legislation. Chapter 5 included recommendations for further research as well as a written model policy that meets all sixteen components of both FERPA and Florida State Statute 1002.22.

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89 CHAPTER 5 A MODEL STUDENT RECO RDS POLICY FOR FLORI DA PUBLIC K 12 SCHOOL DISTRICTS Introduction It is required that Florida public K 12 school districts adhere to federal and state legislation. FERPA and Florida State Statute 1002.22 define the specific components that each school district's policies must include. The purpose of this study was to de termine if Florida K 12 public school districts were aligned to FERPA, Florida State Statute 1002.22, and recent court decisions as well as to create a model student records policy which would incorporate the components of each of the aforementioned ac ts/laws. The model policy took into account case law 1 the Family Educational Rights and Privacy Act 2 and Florida State Statute 1002.22 3 C hapter 5 also provided a summary of the research findings based upon the research question. Chapter 5 conclude d wit h suggestions for further research to increase the knowledge base regarding student records as related to FERPA and state requirements. Demand for Components Embedded within Federal Act and State Statute School board policies designed to define how student records are handled within a school district must address all of the components of FERPA and Florida State Statute 1002.22. These components are specifically delineated within both acts/laws. FERPA dictate d that four components be included within a stu dent records policy. The components that were singularly 1 See Owasso Independent School District v. Falvo 534 U.S. 426 (2002); Gonzaga University v. Doe 536 U.S. 273 (2002); Woodruff v. Hamilton Township Public Schools 305 Fed. App'x 833, 836 (3d Cir. 2009); Sanchez v. Johnson 416 F.3d 1051 (2005); Doe v. Anonymous Unnamed Sch. Employees & Officials of Cornell Univ. Coll. of Veterinary Med. 87 Fed.Appx. 788 (2d Cir.2004); Marston v. Gainesville Sun Publishing Co ., 341 So. 2d 783 (Fla. 1st DCA 1976); Florida State University v. Hatton 672 So.2d 576, 579 (Fla. 1st DCA 1996); Tampa Television v. School Bd ., 659 So. 2d 331 (Fla. 2nd DCA 1995); WFTV, Inc. v. Sch. Bd. of Seminole 874 So.2d 48, 53 (Fla. 5th DCA 2004); Human Rights Advocacy Committee for Developmental Services for District VIII v. Lee County School Board 457 So.2d 522 ( Fla. 2nd DCA 1984); Johnson v. Deluz 875 So. 2d 1 (Fla. 4th DCA 2004); Florida Department of Education v. Cooper 858 So. 2d 394 (Fla. 1st DCA 2003). 2 See Appendix A. 3 See Appendix C.

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90 defined within FERPA were the right to access records by parents and eligible students, the right to consent to release records to third parties, and the right to file a complaint with the Family Po licy Co mpliance Office (FPCO) The components that were singularly defined within Florida State Statute 1002.22 were annual written notice, timely access (which is further defined as 30 days within the Florida Administrative Code 4 ) exercising waiver of ri ghts, schedule of fees/charges for copies, listing types/locations of records/titles and addresses of record officials, disclosure when prior written consent is not required, disclosure when prior written consent is required, maintenance and security of re cords, health/safety emergencies, directory information, periodic review and elimination of records. The component that overlapped both FERPA and Florida State Statute 1002.22 was the right to challenge inaccuracies Model Policy School Board Rules and p rocedures for maintaining student records shall be consistent with Florida Statutes, State Board of Education rules, and federal laws relating to Family Educational Rights and Privacy Act and Privacy Rights of Parents and Students. The Superintendent shall be responsible for interpreting this rule and the school principal shall be responsible for controlling and supervising student records, following all rules on student records and interpreting rules on student records to the school staff, students, and th e community. 1. Access to Records: The parents or guardian of the student or the student, him/herself, if he/she has reached the age of eighteen (18) or is enrolled in a post secondary educational institution may inspect and review all educational records of the student. 2. Prior Written Consent: The __________ County School District will obtain prior written consent from the parent or eligible student before disclosing personally identifiable information of a student to third parties to whom the parent or elig ible student requests records be sent. 4 See Appendix D, section 6.

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91 3. Complaint Filing: Parents, guardians, and eligible students have t he right to file a complaint with the U.S. Department of Education concerning alleged failures by the _____________County School District to comply with the requirements of FERPA. The name and address of the Office that administers FERPA is : Family Policy Compliance Office U.S. Department of Education 40 0 Maryland Avenue, SW Washington, DC 20202 4605 4. Challenge Inaccuracies: Parents, guardians, and eligible students have t he right to request that the parent or eli gible student believes are inaccurate. 5. Annual Written Notice: Parents, guardians, and eligible students shall receive annual notice that includes the rights of parents, guardians, and eligible students (right to access records, right to challenge inaccura cies, right to file a complaint with the FPCO, and right to consent to disclosure of educational records to third parties). In addition to the rights, the notice shall also include procedures for accessing records, hearings for inaccuracies, and the defin ition of legitimate educational interest of school officials to access records. Every attempt should be made to inform those persons who cannot comprehend a written notice in English. 6. Timely Access: The __________ County School District shall comply with a request to access records within a reasonable period of time, but in no case more than thirty (30) days following request. 7. Waiver of Access: Parents, guardians, and eligible students may waive their right to access or obtain confidential letters or statements of recommendation or evaluation. Waivers of this type shall be made in writing to applicable school officials and shall be signed by the parent, guardian, or eligible student. Waivers of this type shall apply to recommendations or evaluation onl y if the parent, guardian, or eligible student, upon request, is notified of the names of those people submitting confidential letters or statements and such recommendations are used for the purposes intended. The waiver of right of access may be revoked at any time. 8. Fees for Copies: Fees may be charged for reproductions of educational records. These fees shall not exceed the actual cost of reproduction of such records and shall not reflect the costs to retrieve the education records. The cost shall not exceed a maximum of fifteen cents per page ($.15) for a single cents ($.05) may be added to this amount for double sided documents. This is in accordance to Section 119.07, F.S. 9. Listing and Types of Records /Titles and Addresses of Record Officials:

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92 The following types of student records are maintained by the District: Type of Record Location Custodian Address Active and inactive student records as specified in the current procedural manual Last school attended Principal of last school attended As shown in local directory Inactive student cumulative records (Category A) as specified in the current procedural manual Last school attended Principal of last school attended As shown in local directory Individual exceptional student education records as specified in the current procedural manual Last school attended Principal of last school attended As shown in the local directory Individual student psychological records as specified in the current procedural manual Last school attended Principal of last school attended As shown in the local directory 10. Provision for D isclosure of P ersonally I dentifiable I nformation where P rior W ritten C onsent not R equired : Student educational records can be accessed without consent of parent, guardian, or eligible student by specific individuals/agencies in designated circumstances. These are as follows: school officials with legitimate educational interests, school readin ess groups in order to carry out their assigned duties, other school districts in which the student seeks enrollment with proper request from the district, authorized representatives of federal and state in conjunction with the enforcement of or com pliance with legal requirements, credit bureaus in relation to financial aid that the parent, guardian, or eligible student has requested, educational agencies in relation to a arry out accrediting functions, parents, guardians, or eligible students who request access, to comply with a judicial order or subpoena provided that the district notifies parents, guardians, or eligible students of this request prior to complying with su ch an order, to appropriate parties in a health/safety emergency, for use as evidence in student expulsion hearings as set forth in Chapter 120, Florida Statutes, individuals or organizations involved in conducting studies for or on behalf of an institutio n or a board of education for the purpose of developing, validating, or administering predictive tests, administering student or student aid programs, or improving instruction, without personally identifiable

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93 information being used and with destruction of information when the study has concluded, and coordination with other agencies, such as Juvenile Justice, school, and law enforcement as set forth in Florida State Statute 1002.22. 11. Provision for D isclosure of P ersonally I dentifiable I nformation where P rio r W ritten C onsent R equired : Student educational records that include p ersonally identifiable information can be disclosed to an institution, agency, or organization with prior written consent by the parent, guardian, or eligible student. The information m ay be used by the agencies officers, employees, and agents only for the purpose for which the disclosure was made. The agency organization may not subsequently release information to any other party without the written consent of the parent or adult studen t A ll copies of the information shall be destroyed when no longer needed for the purpose for which the disclosure was made. 12. Maintenance and Security of Records: The school principal shall be responsible for the maintenance and security of all student educational records within the school. The superintendent shall be responsible for all student educational records that are not under the supervision of the school p rincipal. 13. Provision for D isclosure of P ersonally I dentifiable I nformation in Health/Safety Emergencies: Student educational records shall be made available to appropriate parties to assist in a health or safety emergency involving the student or other people. 14. Directory Information: The ________ County School District reserve s the right to release student. This information may include school publications, yearbooks, p rograms for school events, handbills, rosters, school news to media, and school/district websites. age, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, graduation date, awards and honors received. Parents, guardians, or eligible students may choose to opt out of publishing of "directory information" within thirty (30) days of annual noti fication. This opt out must be in writing to the school princip al or authorized representative. 15. Periodic Review and Elimination of Information Contained within the Educational Record: The student educational record shall be categorized with data as eithe r Category A or Category B, based upon Florida State Statute 1002.22. I nformation within educational records shall be subject to periodic review and elimination when the information is no longer deemed useful as set forth by the tenets within Statute 100 2.22. Information not within Policy The model policy included within Chapter 5 was succinct and met the three tenets of FERPA, the eleven tenets of Florida State Statute 1002.22 and the one policy that spanned both FERPA and Florida State Statute 1002.22 All components totaled were fifteen components that

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94 were addressed specifically within the model policy. The policy, itself, was basic and did not include extraneous information that could be addressed elsewhere An accompanying manual could detail th e specific procedures for carrying out the policy. This manual could include procedures for the policy such as how the hearing procedure for challenging inaccuracies was held, the two categories of information included within an educational student record as well as custody issues and other questions of interpretation within the policy itself. Chapter Summary The model policy included within Chapter 5 specifically met the tenets of both FERPA and Florida Statute 1002.22. These components number fifteen and were described in detail within the model policy. The need for a model policy became apparent upon first analysis when it was determined that none of the sixty seven public school districts had policies that met all components embodied within both FERP A and Florida State Statute 1002.22. The most uniformity of policies came from policies that were created by NEOLA. The majority of policies, however, had little uniformity. Based upon the case law analyzed, there is a high probability that continued suits will be brought before the court related to student records. By following the model policy, school districts within the state would be able to successfully meet all components within FERPA and Fl orida State Statute 1002.22. Meeting t hese components would allow districts to adhere to federal and state law and avoid costly litigation in the future. Recommendations for Further Study In this study, the researcher examined current student records policies within the sixty seven Florida pub lic school districts. The study revealed that none of the Florida public K 12 school districts met all components within both FERPA and Florida State Statute 1002.22. No attempt was made to determine the extent of compliance to the policies within the dis tricts. This researcher recommends that a study be conducted to determine how closely school districts

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95 follow the written policy within the district related to student records. A study related to compliance of student record policies within the districts w ould contribute to understanding how school districts comply on a day to day basis to FERPA and Florida State Statute 1002.22.

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96 APPENDIX A FAMILY EDUCATIONAL R IGHTS AND PRIVACY AC T UNITED STATES CODE TITLE X X CHAPTER 31 GENERAL PROVISIONS CONCERNING EDUCATION SUBCHAPTER 3. GENERAL REQUIREMENTS AND CONDITIONS CONCERNING OPERATION AND ADMINISTRATION OF EDUCATION PROGRAMS:GENERAL AUTHORITY OF SECRETARY PART 4. RECORDS; PRIVACY; LIMITATION ON WITHHOLDING FEDERAL FUNDS SEC. 1232G. FAMILY EDUCATI ONAL AND PRIVACY RIGHTS (a) Conditions for availability of funds to educational agencies or institutions; inspection and review of education records; specific information to be made available; procedure for access to education records; reasonableness of time for such access; hearings; written explanations by parents; definitions. (1) (A) No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children. If any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information cont ained in such part of such material. Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty five days after the request has been made. (B) The first sentence of subparagraph (A) shall not operate to make available to students in institutions of postsecondary education the following materials: (i) financial records of the pa rents of the student or any information contained therein; (ii) confidential letters and statements of recommendation, which were placed in the education records prior to January 1, 1975, if such letters or statements are not used for purposes other than those for which they were specifically intended; (iii) if the student has signed a waiver of the student's right of access under this subsection in accordance with subparagraph (C), confidential recommendations -(I) respecting admission to any education al agency or institution, (II) respecting an application for employment, and (III) respecting the receipt of an honor or honorary recognition.

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97 (C) A student or a person applying for admission may waive his right of access to confidential statements described in clause (iii) of subparagraph (B), except that such waiver shall apply to recommendations only if (i) the student is, upon request, notifi ed of the names of all persons making confidential recommendations and (ii) such recommendations are used solely for the purpose for which they were specifically intended. Such waivers may not be required as a condition for admission to, receipt of financi al aid from, or receipt of any other services or benefits from such agency or institution. (2) No funds shall be made available under any applicable program to any educational agency or institution unless the parents of students who are or have been in at tendance at a school of such agency or at such institution are provided an opportunity for a hearing by such agency or institution, in accordance with regulations of the Secretary, to challenge the content of such student's education records, in order to i nsure that the records are not inaccurate, misleading, or otherwise in violation of the privacy or other rights of students, and to provide an opportunity for the correction or deletion of any such inaccurate, misleading, or otherwise inappropriate data co ntained therein and to insert into such records a written explanation of the parents respecting the content of such records. (3) For the purposes of this section the term "educational agency or institution" means any public or private agency or institutio n which is the recipient of funds under any applicable program. (4) (A) For the purposes of this section, the term "education records" means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials whi ch -(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 institutio n 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

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98 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. (5) (A) For the purposes of this section the term "directory information" relating to a student includes the foll owing: the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards rece ived, and the most recent previous educational agency or institution attended by the student. (B) Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated a s such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the parent's prior consent. (6) For the purposes of this section, the term "student" includes any person with respect to whom an educational agency or institution maintains education records or personally identifiable inform ation, but does not include a person who has not been in attendance at such agency or institution. (b) Release of education records; parental consent requirement; exceptions; compliance with judicial orders and subpoenas; audit and evaluation of Federally supported education programs; recordkeeping. (1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of educational records (or personally identif iable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following -(A) oth er school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests; (B) officials of other schools or school systems in wh ich the student seeks or intends to enroll, upon condition that the student's parents be notified of the

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99 transfer, receive a copy of the record if desired, and have an opportunity for a hearing to challenge the content of the record; (C) authorized repres entatives of (i) the Comptroller General of the United States, (ii) the Secretary, (iii) an administrative head of an educational agency (as defined in section 408(c) or (iv) State educational authorities, under the conditions set forth in paragraph (3) of this subsection; (D) in connection with a student's application for, or receipt of, financial aid; (E) State and local officials or authorities to whom such information is specifically required to be reported or disclosed pursuant to State statute adopted prior to November 19, 1974; (F) organizations conducting studies for, or on behalf of, educational agencies or institutions for the purpose of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction, if such studies are conducted in such a manner as will not permit the personal identifica tion of students and their parents by persons other than representatives of such organizations and such information will be destroyed when no longer needed for the purpose for which it is conducted; (G) accrediting organizations in order to carry out thei r accrediting functions; (H) parents of a dependent student of such parents, as defined in section 152 of the Internal Revenue Code of 1954; and (I) subject to regulations of the Secretary, in connection with an emergency, appropriate persons if the know ledge of such information is necessary to protect the health or safety of the student or other persons. Nothing in clause (E) of this paragraph shall prevent a State from further limiting the number or type of State or local officials who will continue to have access thereunder. (2) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education r ecords other than directory information, or as is permitted under paragraph (1) of this subsection unless -(A) there is written consent from the student's parents specifying records to be released, the reasons for such release, and to whom, and with a co py of the records to be released to the student's parents and the student if desired by the parents, or (B) such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the s tudents are

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100 notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency. (3) Nothing contained in this section shall preclude authorized representatives of (A) the Comptroller General of the Uni ted States, (B) the Secretary, (C) an administrative head of an education agency or (D) State educational authorities from having access to student or other records which may be necessary in connection with the audit and evaluation of Federally supported e ducation program, or in connection with the enforcement of the Federal legal requirements which relate to such programs: Provided, That except when collection of personally identifiable information is specifically authorized by Federal law, any data collec ted by such officials shall be protected in a manner which will not permit the personal identification of students and their parents by other than those officials, and such personally identifiable data shall be destroyed when no longer needed for such audi t, evaluation, and enforcement of Federal legal requirements. (4) (A) Each educational agency or institution shall maintain a record, kept with the education records of each student, which will indicate all individuals (other than those specified in parag raph (1)(A) of this subsection), agencies, or organizations which have requested or obtained access to a student's education records maintained by such educational agency or institution, and which will indicate specifically the legitimate interest that eac h such person, agency, or organization has in obtaining this information. Such record of access shall be available only to parents, to the school official and his assistants who are responsible for the custody of such records, and to persons or organizatio ns authorized in, and under the conditions of, clauses (A) and (C) of paragraph (1) as a means of auditing the operation of the system. (B) With respect to this subsection, personal information shall only be transferred to a third party on the condition t hat such party will not permit any other party to have access to such information without the written consent of the parents of the student. (5) Nothing in this section shall be construed to prohibit State and local educational officials from having acces s to student or other records which may be necessary in connection with the audit and evaluation of any federally or State supported education program or in connection with the enforcement of the Federal legal requirements which relate to any such program, subject to the conditions specified in the proviso in paragraph (3). (6) Nothing in this section shall be construed to prohibit an institution of postsecondary education from disclosing, to an alleged victim of any crime of violence (as that term is defi ned in section 16 of title 18, United States Code), the results of any disciplinary proceeding conducted by such institution against the alleged perpetrator of such crime with respect to such crime. (c) Surveys or data gathering activities; regulations. T he Secretary shall adopt appropriate regulations to protect the rights of privacy of students and their families in connection with any surveys or data gathering activities conducted, assisted, or authorized by the Secretary or an

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101 administrative head of an education agency. Regulations established under this subsection shall include provisions controlling the use, dissemination, and protection of such data. No survey or data gathering activities shall be conducted by the Secretary, or an administrative head of an education agency under an applicable program, unless such activities are authorized by law. (d) Students' rather than parents' permission or consent. For the purposes of this section, whenever a student has attained eighteen years of age, or is att ending an institution of postsecondary education the permission or consent required of and the rights accorded to the parents of the student shall thereafter only be required of and accorded to the student. (e) Informing parents or students of rights unde r this section. No funds shall be made available under any applicable program to any educational agency or institution unless such agency or institution informs the parents of students, or the students, if they are eighteen years of age or older, or are at tending an institution of postsecondary education, of the rights accorded them by this section. (f) Enforcement; termination of assistance. The Secretary, or an administrative head of an education agency, shall take appropriate actions to enforce provisio ns of this section and to deal with violations of this section, according to the provisions of this Act, except that action to terminate assistance may be taken only if the Secretary finds there has been a failure to comply with the provisions of this sect ion, and he has determined that compliance cannot be secured by voluntary means. (g) Office and review board; creation; functions. The Secretary shall establish or designate an office and review board within the Department of Health, Education, and Welfar e for the purpose of investigating, processing, reviewing, and adjudicating violations of the provisions of this section and complaints which may be filed concerning alleged violations of this section. Except for the conduct of hearings, none of the functi ons of the Secretary under this section shall be carried out in any of the regional offices of such Department.

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102 APPENDIX B UNITED STATES CODE O F FEDERAL REGULATION S TITLE XIV, PART 99: FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT UNITED STATES CODE OF FEDERAL REGULATIONS TITLE XIV PART 99. FAMILY EDUCATION RIGHTS AND PRIVACY Authority: 20 U.S.C. 1232g, unless otherwise noted. Source: 53 FR 11943, Apr. 11, 1988, unless otherwise noted. Subpart A General § 99.1 To which educational agencies or institutions do these regulations apply? (a) Except as otherwise noted in §99.10, this part applies to an educational agency or institution to which funds have been made available under any program administered by the Secr etary, if (1) The educational institution provides educational services or instruction, or both, to students; or (2) The educational agency is authorized to direct and control public elementary or secondary, or postsecondary educational institutions. (b) This part does not apply to an educational agency or institution solely because students attending that agency or institution receive non monetary benefits under a program referenced in paragraph (a) of this section, if no funds under that program are made available to the agency or institution. (c) The Secretary considers funds to be made available to an educational agency or institution of funds under one or more of the programs referenced in paragraph (a) of this section (1) Are provided to the agency o r institution by grant, cooperative agreement, contract, subgrant, or subcontract; or (2) Are provided to students attending the agency or institution and the funds may be paid to the agency or institution by those students for educational purposes, such as under the Pell Grant Program and the Guaranteed Student Loan Program (titles IV A 1 and IV B, respectively, of the Higher Education Act of 1965, as amended). (d) If an educational agency or institution receives funds under one or more of the programs co vered by this section, the regulations in this part apply to the recipient as a whole, including each of its components (such as a department within a university). (Authority: 20 U.S.C. 1232g)

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103 [53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21 1996; 65 FR 41852, July 6, 2000] § 99.2 What is the purpose of these regulations? The purpose of this part is to set out requirements for the protection of privacy of parents and students under section 444 of the General Education Provisions Act, as am ended. (Authority: 20 U.S.C. 1232g) Note to §99.2: 34 CFR 300.610 through 300.626 contain requirements regarding the confidentiality of information relating to children with disabilities who receive evaluations, services or other benefits under Part B of t he Individuals with Disabilities Education Act (IDEA). 34 CFR 303.402 and 303.460 identify the confidentiality of information requirements regarding children and infants and toddlers with disabilities and their families who receive evaluations, services, o r other benefits under Part C of IDEA. 34 CFR 300.610 through 300.627 contain the confidentiality of information requirements that apply to personally identifiable data, information, and records collected or maintained pursuant to Part B of the IDEA. [53 F R 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 73 FR 74851, Dec. 9, 2008] § 99.3 What definitions apply to these regulations? The following definitions apply to this part: Act means the Family Educational Rights and Privacy Act of 1974 as amended, enacted as section 444 of the General Education Provisions Act. (Authority: 20 U.S.C. 1232g) Attendance includes, but is not limited to (a) Attendance in person or by paper correspondence, videoconference, satellite, Internet, or other electronic information and telecommunications technologies for students who are not physically present in the classroom; and (b) The period during which a person is working under a work study program. (Authority: 20 U.S.C. 1232g) Authorized representative means any entity or individual designated by a State or local educational authority or an agency headed by an official listed in §99.31(a)(3) to conduct with respect to Federal or State supported education programs any audit or evaluation, or any complia nce or enforcement activity in connection with Federal legal requirements that relate to these programs.

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104 (Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5)) Biometric record, as used in the definition of personally identifiable information, means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriti ng. (Authority: 20 U.S.C. 1232g) Dates of attendance. (a) The term means the period of time during which a student attends or attended an educational agency or institution. Examples of dates of attendance include an academic year, a spring semester, or a first quarter. (b) The term does not include specific daily records of a student's attendance at an educational agency or institution. (Authority: 20 U.S.C. 1232g(a)(5)(A)) Directory information means information contained in an education record of a stud ent that would not generally be considered harmful or an invasion of privacy if disclosed. (a) Directory information includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of bir th; major field of study; grade level; enrollment status ( e.g., undergraduate or graduate, full time or part time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended. (b) Directory information does not include a student's (1) Social security number; or (2) Student identification (ID) number, except as provided in paragraph (c) of this definition. (c) In accordance with paragraphs (a) and (b) of this definition, directory information includes (1) A student ID number, user ID, or other unique personal identifier used by a student for purposes of accessing or communicating in ele ctronic systems, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a personal identification number (PIN), password or other factor known or possessed only by the authorized user; and (2) A student ID number or other unique personal identifier that is displayed on a student ID badge, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a PIN, password, or other factor known or possessed only by the authorized user.

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105 (Authority: 20 U.S.C. 1232g(a)(5)(A)) Disciplinary action or proceeding means the inves tigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to students of the agency or institution. Disclosure means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or creat ed the record. (Authority: 20 U.S.C. 1232g(b)(1) and (b)(2)) Early childhood education program means (a) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831 et seq. ), including a migrant or seasonal H ead Start program, an Indian Head Start program, or a Head Start program or an Early Head Start program that also receives State funding; (b) A State licensed or regulated child care program; or (c) A program that (1) Serves children from birth through ag e six that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and (2) Is (i) A State prekindergarten program; (ii) A program authorized under section 619 or part C o f the Individuals with Disabilities Education Act; or (iii) A program operated by a local educational agency. Educational agency or institution means any public or private agency or institution to which this part applies under §99.1(a). (Authority: 20 U.S. C. 1232g(a)(3)) Education program means any program that is principally engaged in the provision of education, including, but not limited to, early childhood education, elementary and secondary education, postsecondary education, special education, job tr aining, career and technical education, and adult education, and any program that is administered by an educational agency or institution.

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106 (Authority: 20 U.S.C. 1232g(b)(3), (b)(5)) Education records. (a) The term means those records that are: (1) Directl y related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution. (b) The term does not include: (1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record. (2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of §99.8. (3)(i) Recor ds relating to an individual who is employed by an educational agency or institution, that: (A) Are made and maintained in the normal course of business; (B) Relate exclusively to the individual in that individual's capacity as an employee; and (C) Are not available for use for any other purpose. (ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of th is definition. (4) Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are: (i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofess ional acting in his or her professional capacity or assisting in a paraprofessional capacity; (ii) Made, maintained, or used only in connection with treatment of the student; and (iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, program of instruction at the agency or institution; and

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107 (5) Records created or received by an educational agency or institution after an in dividual is no longer a student in attendance and that are not directly related to the individual's attendance as a student. (6) Grades on peer graded papers before they are collected and recorded by a teacher. (Authority: 20 U.S.C. 1232g(a)(4)) Eligible student means a student who has reached 18 years of age or is attending an institution of postsecondary education. (Authority: 20 U.S.C. 1232g(d)) Institution of postsecondary education means an institution that provides education to students beyond the s beyond grade 12) at which secondary education is provided as determined under State law. (Authority: 20 U.S.C. 1232g(d)) Parent means a parent of a student and includes a nat ural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian. (Authority: 20 U.S.C. 1232g) Party means an individual, agency, institution, or organization. (Authority: 20 U.S.C. 1232g(b)(4)(A)) Personally Identifi able Information The term includes, but is not limited to (a) The student's name; (b) The name of the student's parent or other family members; (c) The address of the student or student's family; (d) A personal identifier, such as the student's social security number, student number, or biometric record; (e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

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108 (f) Other information that, alone or in combination, is linked or linkable to a specific st udent that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) Information requested by a person who the educational agency o r institution reasonably believes knows the identity of the student to whom the education record relates. (Authority: 20 U.S.C. 1232g) Record means any information recorded in any way, including, but not limited to, handwriting, print, computer media, vid eo or audio tape, film, microfilm, and microfiche. (Authority: 20 U.S.C. 1232g) Secretary means the Secretary of the U.S. Department of Education or an official or employee of the Department of Education acting for the Secretary under a delegation of auth ority. (Authority: 20 U.S.C. 1232g) Student, except as otherwise specifically provided in this part, means any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains educa tion records. (Authority: 20 U.S.C. 1232g(a)(6)) [53 FR 11943, Apr. 11, 1988, as amended at 60 FR 3468, Jan. 17, 1995; 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000; 73 FR 74851, Dec. 9, 2008; 76 FR 75641, Dec. 2, 2011] § 99.4 What are the rights of parents? An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to su ch matters as divorce, separation, or custody that specifically revokes these rights. (Authority: 20 U.S.C. 1232g) § 99.5 What are the rights of students? (a)(1) When a student becomes an eligible student, the rights accorded to, and consent required of parents under this part transfer from the parents to the student. (2) Nothing in this section prevents an educational agency or institution from disclosing education records, or personally identifiable information from education records, to a parent with out the prior written consent of an eligible student if the disclosure meets the conditions in §99.31(a)(8), §99.31(a)(10), §99.31(a)(15), or any other provision in §99.31(a).

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109 (b) The Act and this part do not prevent educational agencies or institutions fr om giving students rights in addition to those given to parents. (c) An individual who is or has been a student at an educational institution and who applies for admission at another component of that institution does not have rights under this part with r espect to records maintained by that other component, including records maintained in connection with the student's application for admission, unless the student is accepted and attends that other component of the institution. (Authority: 20 U.S.C. 1232g(d )) [53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3188, Jan. 7, 1993; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008] § 99.6 [Reserved] § 99.7 What must an educational agency or institution include in its annual notification? (a)(1) Each educa tional agency or institution shall annually notify parents of students currently in attendance, or eligible students currently in attendance, of their rights under the Act and this part. (2) The notice must inform parents or eligible students that they hav e the right to (i) Inspect and review the student's education records; (ii) Seek amendment of the student's education records that the parent or eligible student believes to be inaccurate, misleading, or otherwise in violation of the student's privacy rights; (iii) Consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that the Act and §99.31 authorize disclosure without consent; and (iv) File with the Department a complaint under §§99.63 and 99.64 concerning alleged failures by the educational agency or institution to comply with the requirements of the Act and this part. (3) The notice must include all of the following: (i) The procedure for exercising the right to inspect and re view education records. (ii) The procedure for requesting amendment of records under §99.20. (iii) If the educational agency or institution has a policy of disclosing education records under §99.31(a)(1), a specification of criteria for determining who con stitutes a school official and what constitutes a legitimate educational interest.

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110 (b) An educational agency or institution may provide this notice by any means that are reasonably likely to inform the parents or eligible students of their rights. (1) An e ducational agency or institution shall effectively notify parents or eligible students who are disabled. (2) An agency or institution of elementary or secondary education shall effectively notify parents who have a primary or home language other than Engli sh. (Approved by the Office of Management and Budget under control number 1880 0508) (Authority: 20 U.S.C. 1232g (e) and (f)) [61 FR 59295, Nov. 21, 1996] § 99.8 What provisions apply to records of a law enforcement unit? (a)(1) Law enforcement unit me ans any individual, office, department, division, or other component of an educational agency or institution, such as a unit of commissioned police officers or non commissioned security guards, that is officially authorized or designated by that agency or institution to (i) 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 (ii) Maint ain the physical security and safety of the agency or institution. (2) A component of an educational agency or institution does not lose its status as a law enforcement unit if it also performs other, non law enforcement functions for the agency or institu tion, including investigation of incidents or conduct that constitutes or leads to a disciplinary action or proceedings against the student. (b)(1) Records of a law enforcement unit means those records, files, documents, and other materials that are (i) C reated by a law enforcement unit; (ii) Created for a law enforcement purpose; and (iii) Maintained by the law enforcement unit. (2) Records of a law enforcement unit does not mean (i) Records created by a law enforcement unit for a law enforcement purpose that are maintained by a component of the educational agency or institution other than the law enforcement unit; or

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111 (ii) Records created and maintained by a law enforcement unit exclusively for a non law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution. (c)(1) Nothing in the Act prohibits an educational agency or institution from contacting its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible violation of, or to enforce, any local, State, or Federal law. (2) Education records, and personally identifiable information contained in education records, do not lose their status as education records and remain subject to the Act, including th e disclosure provisions of §99.30, while in the possession of the law enforcement unit. (d) The Act neither requires nor prohibits the disclosure by an educational agency or institution of its law enforcement unit records. (Authority: 20 U.S.C. 1232g(a)(4) (B)(ii)) [60 FR 3469, Jan. 17, 1995] Subpart B What Are the Rights of Inspection and Review of Education Records? § 99.10 What rights exist for a parent or eligible student to inspect and review education records? (a) Except as limited under §99.12, a p arent or eligible student must be given the opportunity to inspect and review the student's education records. This provision applies to (1) Any educational agency or institution; and (2) Any State educational agency (SEA) and its components. (i) For the purposes of subpart B of this part, an SEA and its components constitute an educational agency or institution. (ii) An SEA and its components are subject to subpart B of this part if the SEA maintains education records on students who are or have been in a ttendance at any school of an educational agency or institution subject to the Act and this part. (b) The educational agency or institution, or SEA or its component, shall comply with a request for access to records within a reasonable period of time, but not more than 45 days after it has received the request. (c) The educational agency or institution, or SEA or its component shall respond to reasonable requests for explanations and interpretations of the records.

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112 (d) If circumstances effectively prevent t he parent or eligible student from exercising the right to inspect and review the student's education records, the educational agency or institution, or SEA or its component, shall (1) Provide the parent or eligible student with a copy of the records requ ested; or (2) Make other arrangements for the parent or eligible student to inspect and review the requested records. (e) The educational agency or institution, or SEA or its component shall not destroy any education records if there is an outstanding requ est to inspect and review the records under this section. (f) While an education agency or institution is not required to give an eligible student access to treatment records under paragraph (b)(4) of the definition of Education records in §99.3, the stude nt may have those records reviewed by a physician or other appropriate professional of the student's choice. (Authority: 20 U.S.C. 1232g(a)(1) (A) and (B)) [53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996] § 99.11 May an educational agency or institution charge a fee for copies of education records? (a) Unless the imposition of a fee effectively prevents a parent or eligible student from exercising the right to inspect and review the student's education records, an educational agency or institution may charge a fee for a copy of an education record which is made for the parent or eligible student. (b) An educational agency or institution may not charge a fee to search for or to retrieve the education records of a student. (Authority: 20 U.S.C. 1232g(a)(1)) § 99.12 What limitations exist on the right to inspect and review records? (a) If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student. (b) A postsecondary institution does not have to permit a student to inspect and review education records that are: (1) Financial records, including any information those records contain, of his or her parents;

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113 (2) Confidential letters and confidential statements of recommendation placed in the educa tion records of the student before January 1, 1975, as long as the statements are used only for the purposes for which they were specifically intended; and (3) Confidential letters and confidential statements of recommendation placed in the student's educa tion records after January 1, 1975, if: (i) The student has waived his or her right to inspect and review those letters and statements; and (ii) Those letters and statements are related to the student's: (A) Admission to an educational institution; (B) App lication for employment; or (C) Receipt of an honor or honorary recognition. (c)(1) A waiver under paragraph (b)(3)(i) of this section is valid only if: (i) The educational agency or institution does not require the waiver as a condition for admission to o r receipt of a service or benefit from the agency or institution; and (ii) The waiver is made in writing and signed by the student, regardless of age. (2) If a student has waived his or her rights under paragraph (b)(3)(i) of this section, the educational institution shall: (i) Give the student, on request, the names of the individuals who provided the letters and statements of recommendation; and (ii) Use the letters and statements of recommendation only for the purpose for which they were intended. (3)(i) A waiver under paragraph (b)(3)(i) of this section may be revoked with respect to any actions occurring after the revocation. (ii) A revocation under paragraph (c)(3)(i) of this section must be in writing. (Authority: 20 U.S.C. 1232g(a)(1) (A), (B), (C), and (D)) [53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996] Subpart C What Are the Procedures for Amending Education Records? § 99.20 How can a parent or eligible student request amendment of the student's education records?

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114 (a) If a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student's rights of privacy, he or she may ask the educational agency or institution to amend the record. (b) The educational agency or institution shall decide whether to amend the record as requested within a reasonable time after the agency or institution receives the request. (c) If the educational agency or institution decides not to amend the rec ord as requested, it shall inform the parent or eligible student of its decision and of his or her right to a hearing under §99.21. (Authority: 20 U.S.C. 1232g(a)(2)) [53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59296, Nov. 21, 1996] § 99.21 Under what conditions does a parent or eligible student have the right to a hearing? (a) An educational agency or institution shall give a parent or eligible student, on request, an opportunity for a hearing to challenge the content of the student's education records on the grounds that the information contained in the education records is inaccurate, misleading, or in violation of the privacy rights of the student. (b)(1) If, as a result of the hearing, the educational agency or instit ution decides that the information is inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall: (i) Amend the record accordingly; and (ii) Inform the parent or eligible student of the amendment in writing. (2) If, as a result of the hearing, the educational agency or institution decides that the information in the education record is not inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall inform the parent or eligible stude nt of the right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision of the agency or institution, or both. (c) If an educational agency or institution places a statem ent in the education records of a student under paragraph (b)(2) of this section, the agency or institution shall: (1) Maintain the statement with the contested part of the record for as long as the record is maintained; and (2) Disclose the statement when ever it discloses the portion of the record to which the statement relates.

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115 (Authority: 20 U.S.C. 1232g(a)(2)) [53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996] § 99.22 What minimum requirements exist for the conduct of a hearing? Th e hearing required by §99.21 must meet, at a minimum, the following requirements: (a) The educational agency or institution shall hold the hearing within a reasonable time after it has received the request for the hearing from the parent or eligible studen t. (b) The educational agency or institution shall give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing. (c) The hearing may be conducted by any individual, including an official of the educational a gency or institution, who does not have a direct interest in the outcome of the hearing. (d) The educational agency or institution shall give the parent or eligible student a full and fair opportunity to present evidence relevant to the issues raised under §99.21. The parent or eligible student may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney. (e) The educational agency or institution shall make its decision in writing within a reasonable period of time after the hearing. (f) The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision. (Authority: 20 U.S.C. 1232g(a)(2)) Subpart D May an Ed ucational Agency or Institution Disclose Personally Identifiable Information From Education Records? § 99.30 Under what conditions is prior consent required to disclose information? (a) The parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records, except as provided in §99.31. (b) The writt en consent must: (1) Specify the records that may be disclosed; (2) State the purpose of the disclosure; and (3) Identify the party or class of parties to whom the disclosure may be made.

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116 (c) When a disclosure is made under paragraph (a) of this section: (1) If a parent or eligible student so requests, the educational agency or institution shall provide him or her with a copy of the records disclosed; and (2) If the parent of a student who is not an eligible student so requests, the agency or institution s hall provide the student with a copy of the records disclosed. electronic form that (1) Identifies and authenticates a particular person as the source of the elec tronic consent; and (2) Indicates such person's approval of the information contained in the electronic consent. (Authority: 20 U.S.C. 1232g (b)(1) and (b)(2)(A)) [53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 69 FR 21671, Apr. 21, 20 04] § 99.31 Under what conditions is prior consent not required to disclose information? (a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99. 30 if the disclosure meets one or more of the following conditions: (1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational int erests. (B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party ( 1 ) Performs an institutional service or function for which the agency or institution would otherwise use employees; ( 2 ) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and ( 3 ) Is subject to the re quirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records. (ii) An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those educ ation records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access

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117 controls must ensure that its administrative policy for controlling access to education records is ef fective and that it remains in compliance with the legitimate educational interest requirement in paragraph (a)(1)(i)(A) of this section. (2) The disclosure is, subject to the requirements of §99.34, to officials of another school, school system, or instit ution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer. Note: Section 4155(b) of the No Child Left Be hind Act of 2001, 20 U.S.C. 7165(b), requires each State to assure the Secretary of Education that it has a procedure in place to facilitate the transfer of disciplinary records with respect to a suspension or expulsion of a student by a local educational agency to any private or public elementary or secondary school in which the student is subsequently enrolled or seeks, intends, or is instructed to enroll. (3) The disclosure is, subject to the requirements of §99.35, to authorized representatives of (i) The Comptroller General of the United States; (ii) The Attorney General of the United States; (iii) The Secretary; or (iv) State and local educational authorities. (4)(i) The disclosure is in connection with financial aid for which the student has applied or which the student has received, if the information is necessary for such purposes as to: (A) Determine eligibility for the aid; (B) Determine the amount of the aid; (C) Determine the conditions for the aid; or (D) Enforce the terms and conditions of the aid. (ii) As used in paragraph (a)(4)(i) of this section, financial aid means a payment of funds provided to an individual (or a payment in kind of tangible or intangible property to the individual) that is conditioned on the individual's attendance at an educational agency or institution. (Authority: 20 U.S.C. 1232g(b)(1)(D)) (5)(i) The disclosure is to State and local officials or authorities to whom this information is specifically

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118 (A) Allowed to be reported or disclosed pursuant to State statute adop ted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released; or (B) Allowed to be reported or disclosed pursuant to State sta tute adopted after November 19, 1974, subject to the requirements of §99.38. (ii) Paragraph (a)(5)(i) of this section does not prevent a State from further limiting the number or type of State or local officials to whom disclosures may be made under that p aragraph. (6)(i) The disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to: (A) Develop, validate, or administer predictive tests; (B) Administer student aid programs; or (C) Improve instruction. (i i) Nothing in the Act or this part prevents a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section from entering into agreements with organizations conducting studies under paragraph (a)(6)(i) of t his section and redisclosing personally identifiable information from education records on behalf of educational agencies and institutions that disclosed the information to the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section in accordance with the requirements of §99.33(b). (iii) An educational agency or institution may disclose personally identifiable information under paragraph (a)(6)(i) of this section, and a State or local educational autho rity or agency headed by an official listed in paragraph (a)(3) of this section may redisclose personally identifiable information under paragraph (a)(6)(i) and (a)(6)(ii) of this section, only if (A) The study is conducted in a manner that does not permi t personal identification of parents and students by individuals other than representatives of the organization that have legitimate interests in the information; (B) The information is destroyed when no longer needed for the purposes for which the study w as conducted; and (C) The educational agency or institution or the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section enters into a written agreement with the organization that ( 1 ) Specifies t he purpose, scope, and duration of the study or studies and the information to be disclosed;

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119 ( 2 ) Requires the organization to use personally identifiable information from education records only to meet the purpose or purposes of the study as stated in th e written agreement; ( 3 ) Requires the organization to conduct the study in a manner that does not permit personal identification of parents and students, as defined in this part, by anyone other than representatives of the organization with legitimate in terests; and ( 4 ) Requires the organization to destroy all personally identifiable information when the information is no longer needed for the purposes for which the study was conducted and specifies the time period in which the information must be destr oyed. (iv) An educational agency or institution or State or local educational authority or Federal agency headed by an official listed in paragraph (a)(3) of this section is not required to initiate a study or agree with or endorse the conclusions or resul ts of the study. (iv) An educational agency or institution or State or local educational authority or Federal agency headed by an official listed in paragraph (a)(3) of this section is not required to initiate a study or agree with or endorse the conclusio ns or results of the study. (v) For the purposes of paragraph (a)(6) of this section, the term organization includes, but is not limited to, Federal, State, and local agencies, and independent organizations. (7) The disclosure is to accrediting organizations to carry out their accrediting functions. (8) The disclosure is to parents, as defined in §99.3, of a dependent student, as defined in section 152 of the Internal Revenue Code of 1986. (9)(i) The disclosure is to comply with a judicial order or lawfully issued subpoena. (ii) The educational agency or institution may disclose information under paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action, unless the disclosure is in compliance with (A) A Federal grand jury subpoena and the court has ordered that the existence or the contents of the subpoen a or the information furnished in response to the subpoena not be disclosed; (B) Any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; or (C) An ex parte court order obtained by the United States Attorney General (or designee not lower than an Assistant Attorney General) concerning investigations or prosecutions of an

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120 offense listed in 18 U.S.C. 2332b(g)(5)(B) or an act of domestic or international terrorism as defined in 18 U.S.C. 2331. (iii)(A) If an educational agency or institution initiates legal action against a parent or student, the educational agency or institution may discl ose to the court, without a court order or subpoena, the education records of the student that are relevant for the educational agency or institution to proceed with the legal action as plaintiff. (B) If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student's education records that are relevant for the educational agency or institution to defend itself. (10) The disclosure is in connection with a health or safety emergency, under the conditions described in §99.36. (11) The disclosure is information the educational agency or institution has designated as ibed in §99.37. (12) The disclosure is to the parent of a student who is not an eligible student or to the student. (13) The disclosure, subject to the requirements in §99.39, is to a victim of an alleged perpetrator of a crime of violence or a non forcibl e sex offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense. The institution may disclose the final results of the dis ciplinary proceeding, regardless of whether the institution concluded a violation was committed. (14)(i) The disclosure, subject to the requirements in §99.39, is in connection with a disciplinary proceeding at an institution of postsecondary education. Th e institution must not disclose the final results of the disciplinary proceeding unless it determines that (A) The student is an alleged perpetrator of a crime of violence or non forcible sex offense; and (B) With respect to the allegation made against hi m or her, the student has committed a violation of the institution's rules or policies. (ii) The institution may not disclose the name of any other student, including a victim or witness, without the prior written consent of the other student. (iii) This s ection applies only to disciplinary proceedings in which the final results were reached on or after October 7, 1998. (15)(i) The disclosure is to a parent of a student at an institution of postsecondary education regarding the student's violation of any Fe deral, State, or local law, or of any rule or policy of the institution, governing the use or possession of alcohol or a controlled substance if

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121 (A) The institution determines that the student has committed a disciplinary violation with respect to that us e or possession; and (B) The student is under the age of 21 at the time of the disclosure to the parent. (ii) Paragraph (a)(15) of this section does not supersede any provision of State law that prohibits an institution of postsecondary education from disc losing information. (16) The disclosure concerns sex offenders and other individuals required to register under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14071, and the information was provided to the educationa l agency or institution under 42 U.S.C. 14071 and applicable Federal guidelines. (b)(1) De identified records and information. An educational agency or institution, or a party that has received education records or information from education records under this part, may release the records or information without the consent required by §99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination tha t a student's identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information. (2) An educational agency or institution, or a party that has received education records or information from education records under this part, may release de identified student level data from education records for the purpose of education research by attaching a code to each record that may allow the recipient to match information received from the same source, provided that (i) An educational agency or institution or other party that releases de identified data under paragraph (b)(2) of this section does not disclose any information about how it generates and assigns a record code, or that wou ld allow a recipient to identify a student based on a record code; (ii) The record code is used for no purpose other than identifying a de identified record for purposes of education research and cannot be used to ascertain personally identifiable informat ion about a student; and (iii) The record code is not based on a student's social security number or other personal information. (c) An educational agency or institution must use reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom the agency or institution discloses personally identifiable information from education records. (d) Paragraphs (a) and (b) of this section do not require an educational agency or institution or any other party to disclose education records or information from education records to any party except for parties under paragraph (a)(12) of this section.

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122 (Authority: 20 U.S.C. 1232g(a)(5)(A), (b), (h), (i), and (j)). [53 FR 11943, Apr. 11, 1988; 53 FR 19368 May 27, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 61 FR 59296, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec, 9, 2008; 74 FR 401, Jan. 6, 2009; 76 FR 75641, Dec. 2, 2011] § 99.32 What recordkeeping requirements exist concerning request s and disclosures? (a)(1) An educational agency or institution must maintain a record of each request for access to and each disclosure of personally identifiable information from the education records of each student, as well as the names of State and lo cal educational authorities and Federal officials and agencies listed in §99.31(a)(3) that may make further disclosures of personally identifiable information from the student's education records without consent under §99.33(b). (2) The agency or instituti on shall maintain the record with the education records of the student as long as the records are maintained. (3) For each request or disclosure the record must include: (i) The parties who have requested or received personally identifiable information fro m the education records; and (ii) The legitimate interests the parties had in requesting or obtaining the information. (4) An educational agency or institution must obtain a copy of the record of further disclosures maintained under paragraph (b)(2) of thi s section and make it available in response to a parent's or eligible student's request to review the record required under paragraph (a)(1) of this section. (5) An educational agency or institution must record the following information when it discloses p ersonally identifiable information from education records under the health or safety emergency exception in §99.31(a)(10) and §99.36: (i) The articulable and significant threat to the health or safety of a student or other individuals that formed the basis for the disclosure; and (ii) The parties to whom the agency or institution disclosed the information. (b)(1) Except as provided in paragraph (b)(2) of this section, if an educational agency or institution discloses personally identifiable information from education records with the understanding authorized under §99.33(b), the record of the disclosure required under this section must include: (i) The names of the additional parties to which the receiving party may disclose the information on behalf of the educational agency or institution; and

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123 (ii) The legitimate interests under §99.31 which each of the additional parties has in requesting or obtaining the information. (2)(i) A State or local educational authority or Federal official or agency listed in §99 .31(a)(3) that makes further disclosures of information from education records under §99.33(b) must record the names of the additional parties to which it discloses information on behalf of an educational agency or institution and their legitimate interest s in the information under §99.31 if the information was received from: (A) An educational agency or institution that has not recorded the further disclosures under paragraph (b)(1) of this section; or (B) Another State or local educational authority or Fe deral official or agency listed in §99.31(a)(3). (ii) A State or local educational authority or Federal official or agency that records further disclosures of information under paragraph (b)(2)(i) of this section may maintain the record by the student's cl ass, school, district, or other appropriate grouping rather than by the name of the student. (iii) Upon request of an educational agency or institution, a State or local educational authority or Federal official or agency listed in §99.31(a)(3) that mainta ins a record of further disclosures under paragraph (b)(2)(i) of this section must provide a copy of the record of further disclosures to the educational agency or institution within a reasonable period of time not to exceed 30 days. (c) The following part ies may inspect the record relating to each student: (1) The parent or eligible student. (2) The school official or his or her assistants who are responsible for the custody of the records. (3) Those parties authorized in §99.31(a) (1) and (3) for the purp oses of auditing the recordkeeping procedures of the educational agency or institution. (d) Paragraph (a) of this section does not apply if the request was from, or the disclosure was to: (1) The parent or eligible student; (2) A school official under §99.31(a)(1); (3) A party with written consent from the parent or eligible student; (4) A party seeking directory information; or (5) A party seeking or receiving records in accordance with §99.31(a)(9)(ii)(A) through (C).

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124 (Approved by the Office of Manage ment and Budget under control number 1880 0508) (Authority: 20 U.S.C. 1232g(b)(1) and (b)(4)(A)) [53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74853, Dec. 9, 2008] § 99.33 What limitations apply to the redisclosure of info rmation? (a)(1) An educational agency or institution may disclose personally identifiable information from an education record only on the condition that the party to whom the information is disclosed will not disclose the information to any other party w ithout the prior consent of the parent or eligible student. (2) The officers, employees, and agents of a party that receives information under paragraph (a)(1) of this section may use the information, but only for the purposes for which the disclosure was made. (b)(1) Paragraph (a) of this section does not prevent an educational agency or institution from disclosing personally identifiable information with the understanding that the party receiving the information may make further disclosures of the informa tion on behalf of the educational agency or institution if (i) The disclosures meet the requirements of §99.31; and (ii)(A) The educational agency or institution has complied with the requirements of §99.32(b); or (B) A State or local educational authorit y or Federal official or agency listed in §99.31(a)(3) has complied with the requirements of §99.32(b)(2). (2) A party that receives a court order or lawfully issued subpoena and rediscloses personally identifiable information from education records on beh alf of an educational agency or institution in response to that order or subpoena under §99.31(a)(9) must provide the notification required under §99.31(a)(9)(ii). (c) Paragraph (a) of this section does not apply to disclosures under §§99.31(a)(8), (9), (1 1), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. 1092(f) (Clery Act), to the accuser and accus ed regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense. (d) An educational agency or institution must inform a party to whom disclosure is made of the requirements of paragraph (a) of this section except for disclo sures made under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Clery Act to the accuser and accused regarding the outcome of any campus disciplinary proceeding br ought alleging a sexual offense.

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125 (Authority: 20 U.S.C. 1232g(b)(4)(B)) [53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74853, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011] § 99.34 What conditions apply t o disclosure of information to other educational agencies or institutions? (a) An educational agency or institution that discloses an education record under §99.31(a)(2) shall: (1) Make a reasonable attempt to notify the parent or eligible student at the last known address of the parent or eligible student, unless: (i) The disclosure is initiated by the parent or eligible student; or (ii) The annual notification of the agency or institution under §99.7 includes a notice that the agency or institution forwa rds education records to other agencies or institutions that have requested the records and in which the student seeks or intends to enroll or is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer; (2) Give the parent or eligible student, upon request, a copy of the record that was disclosed; and (3) Give the parent or eligible student, upon request, an opportunity for a hearing under subpart C. (b) An educational agency or institution may disclose a n education record of a student in attendance to another educational agency or institution if: (1) The student is enrolled in or receives services from the other agency or institution; and (2) The disclosure meets the requirements of paragraph (a) of this section. (Authority: 20 U.S.C. 1232g(b)(1)(B)) [53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008] § 99.35 What conditions apply to disclosure of information for Federal or State program purposes? (a)(1) Aut horized representatives of the officials or agencies headed by officials listed in §99.31(a)(3) may have access to education records in connection with an audit or evaluation of Federal or State supported education programs, or for the enforcement of or co mpliance with Federal legal requirements that relate to those programs.

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126 (2) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) is responsible for using reasonable methods to ensure to the greatest extent practic able that any entity or individual designated as its authorized representative (i) Uses personally identifiable information only to carry out an audit or evaluation of Federal or State supported education programs, or for the enforcement of or compliance with Federal legal requirements related to these programs; (ii) Protects the personally identifiable information from further disclosures or other uses, except as authorized in paragraph (b)(1) of this section; and (iii) Destroys the personally identifiab le information in accordance with the requirements of paragraphs (b) and (c) of this section. (3) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) must use a written agreement to designate any authorized repre sentative, other than an employee. The written agreement must (i) Designate the individual or entity as an authorized representative; (ii) Specify (A) The personally identifiable information from education records to be disclosed; (B) That the purpose fo r which the personally identifiable information from education records is disclosed to the authorized representative is to carry out an audit or evaluation of Federal or State supported education programs, or to enforce or to comply with Federal legal req uirements that relate to those programs; and (C) A description of the activity with sufficient specificity to make clear that the work falls within the exception of §99.31(a)(3), including a description of how the personally identifiable information from e ducation records will be used; (iii) Require the authorized representative to destroy personally identifiable information from education records when the information is no longer needed for the purpose specified; (iv) Specify the time period in which the i nformation must be destroyed; and (v) Establish policies and procedures, consistent with the Act and other Federal and State confidentiality and privacy provisions, to protect personally identifiable information from education records from further disclosu re (except back to the disclosing entity) and unauthorized use, including limiting use of personally identifiable information from education records to only authorized representatives with legitimate interests in the audit or evaluation of a Federal or St ate supported education program or for compliance or enforcement of Federal legal requirements related to these programs.

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127 (b) Information that is collected under paragraph (a) of this section must (1) Be protected in a manner that does not permit personal identification of individuals by anyone other than the State or local educational authority or agency headed by an official listed in §99.31(a)(3) and their authorized representatives, except that the State or local educational authority or agency headed by an official listed in §99.31(a)(3) may make further disclosures of personally identifiable information from education records on behalf of the educational agency or institution in accordance with the requirements of §99.33(b); and (2) Be destroyed when no longer needed for the purposes listed in paragraph (a) of this section. (c) Paragraph (b) of this section does not apply if: (1) The parent or eligible student has given written consent for the disclosure under §99.30; or (2) The collection of personally identifiable information is specifically authorized by Federal law. (Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5)) [53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011] § 99.36 What conditi ons apply to disclosure of information in health and safety emergencies? (a) An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties, including parents of an eligible student, i n connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. (b) Nothing in this Act or this part shall prevent an educational agency or institution from (1) Including in the education records of a student appropriate information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well being of that student, other students, or other members of the school commun ity; (2) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials within the agency or institution who the agency or institution has determined have legitimate educational interests in the behavi or of the student; or (3) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials in other schools who have been determined to have legitimate educational interests in the behavior of the studen t.

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128 (c) In making a determination under paragraph (a) of this section, an educational agency or institution may take into account the totality of the circumstances pertaining to a threat to the health or safety of a student or other individuals. If the educ ational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is n ecessary to protect the health or safety of the student or other individuals. If, based on the information available at the time of the determination, there is a rational basis for the determination, the Department will not substitute its judgment for that of the educational agency or institution in evaluating the circumstances and making its determination. (Authority: 20 U.S.C. 1232g (b)(1)(I) and (h)) [53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 7 4854, Dec. 9, 2008] § 99.37 What conditions apply to disclosing directory information? (a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students i n attendance at the agency or institution of: (1) The types of personally identifiable information that the agency or institution has designated as directory information; (2) A parent's or eligible student's right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and (3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as directory information. (b) An educational agency or institution may disclose directory information about former students without complying with the notice and opt out conditions in paragraph (a) of this section. However, the agency or institution must continue to honor any valid request to opt out of the disclosure of directory information made while a student was in attendance unless the student rescinds the opt out request. (c) A parent or elig ible student may not use the right under paragraph (a)(2) of this section to opt out of directory information disclosures to (1) Prevent an educational agency or institution from disclosing or requiring a student to disclose the student's name, identifier or institutional email address in a class in which the student is enrolled; or

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129 (2) Prevent an educational agency or institution from requiring a student to wear, to display publicly, or to disclose a student ID card or badge that exhibits information tha t may be designated as directory information under §99.3 and that has been properly designated by the educational agency or institution as directory information in the public notice provided under paragraph (a)(1) of this section. (d) In its public notice to parents and eligible students in attendance at the agency or institution that is described in paragraph (a) of this section, an educational agency or institution may specify that disclosure of directory information will be limited to specific parties, f or specific purposes, or both. When an educational agency or institution specifies that disclosure of directory information will be limited to specific parties, for specific purposes, or both, the educational agency or institution must limit its directory information disclosures to those specified in its public notice that is described in paragraph (a) of this section. (e) An educational agency or institution may not disclose or confirm directory information without meeting the written consent requirements in §99.30 if a student's social security number or other non directory information is used alone or combined with other data elements to identify or help identify the student or the student's records. (Authority: 20 U.S.C. 1232g(a)(5) (A) and (B)) [53 FR 1 1943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011] § 99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system? (a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose ed ucation records under §99.31(a)(5)(i)(B). (b) The officials and authorities to whom the records are disclosed shall certify in writing to the educational agency or institution that the information will not be disclosed to any other party, except as provide d under State law, without the prior written consent of the parent of the student. (Authority: 20 U.S.C. 1232g(b)(1)(J)) [61 FR 59297, Nov. 21, 1996] § 99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational i nstitutions in connection with disciplinary proceedings concerning crimes of violence or non forcible sex offenses? As used in this part:

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13 0 Alleged perpetrator of a crime of violence is a student who is alleged to have committed acts that would, if proven, c onstitute any of the following offenses or attempts to commit the following offenses that are defined in appendix A to this part: Arson Assault offenses Burglary Criminal homicide manslaughter by negligence Criminal homicide murder and nonnegligent manslau ghter Destruction/damage/vandalism of property Kidnapping/abduction Robbery Forcible sex offenses. Alleged perpetrator of a nonforcible sex offense means a student who is alleged to have committed acts that, if proven, would constitute statutory rape or in cest. These offenses are defined in appendix A to this part. Final results means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution. The d isclosure of final results must include only the name of the student, the violation committed, and any sanction imposed by the institution against the student. Sanction imposed means a description of the disciplinary action taken by the institution, the da te of its imposition, and its duration. Violation committed means the institutional rules or code sections that were violated and any essential findings supporting the institution's conclusion that the violation was committed. (Authority: 20 U.S.C. 1232g(b )(6)) [65 FR 41853, July 6, 2000] Subpart E What Are the Enforcement Procedures? § 99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?

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131 (a) For the purposes of this subpart, Office means the Fami ly Policy Compliance Office, U.S. Department of Education. (b) The Secretary designates the Office to: (1) Investigate, process, and review complaints and violations under the Act and this part; and (2) Provide technical assistance to ensure compliance with the Act and this part. (c) The Secretary designates the Office of Administrative Law Judges to act as the Review Board required under the Act to enforce the Act with respect to all applicable programs. The term applicable program is defined in section 400 of the General Education Provisions Act. (Authority: 20 U.S.C. 1232g (f) and (g), 1234) [53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993] § 99.61 What responsibility does an educational agency or institution, a recipient of Depart ment funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws? If an educational agency or institution determines that it cannot comply with the Act or this part due to a conflict with State or local law, it must notify the Office within 45 days, giving the text and citation of the conflicting law. If another recipient of Department funds under any program administered by the Secretary or a third party to which personally identifiable informat ion from education records has been non consensually disclosed determines that it cannot comply with the Act or this part due to a conflict with State or local law, it also must notify the Office within 45 days, giving the text and citation of the conflict ing law. (Authority: 20 U.S.C. 1232g(f)) [76 FR 75642, Dec. 2, 2011] § 99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office? The Office may require an educational agency or instituti on, other recipient of Department funds under any program administered by the Secretary to which personally identifiable information from education records is non consensually disclosed, or any third party outside of an educational agency or institution to which personally identifiable information from education records is non consensually disclosed to submit reports, information on policies and procedures, annual notifications, training materials, or other information necessary to carry out the Office's en forcement responsibilities under the Act or this part. (Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

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132 [76 FR 75643, Dec. 2, 2011] § 99.63 Where are complaints filed? A parent or eligible student may file a written complaint with the Office regarding an alleged violation under the Act and this part. The Office's address is: Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202. (Authority: 20 U.S.C. 1232g(g)) [65 FR 41854, July 6, 2000, as amende d at 73 FR 74854, Dec. 9, 2008] § 99.64 What is the investigation procedure? (a) A complaint must contain specific allegations of fact giving reasonable cause to believe that a violation of the Act or this part has occurred. A complaint does not have to allege that a violation is based on a policy or practice of the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or any third party outside of an educational agency or institution. (b) The Office investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether an educational agency or institution or other reci pient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part. If the Office determines that an educational agency or institution or other recipient of Department funds under any pro gram administered by the Secretary has failed to comply with a provision of the Act or this part, it may also determine whether the failure to comply is based on a policy or practice of the agency or institution or other recipient. The Office also investig ates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether a third party outside of the educational agency or institution has fai led to comply with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33. (Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g)) (c) A timely complaint is defined as an allegation of a violation of the Act that is submitted to the Office within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation. (d) The Office may extend the time limit in this section for good cause shown. (Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g)) [53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 65 FR 41854, July 6, 2000; 73 FR 74854, Dec. 9, 2008; 76 FR 75643, Dec 2, 2011]

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133 § 99.65 What is the content of the notice of investigation issued by the Office? (a) The Office notifies in writing the complainant, if any, and the educational agency or institution, the recipient of Department funds under any program administered by t he Secretary, or the third party outside of an educational agency or institution if it initiates an investigation under §99.64(b). The written notice (1) Includes the substance of the allegations against the educational agency or institution, other recipi ent, or third party; and (2) Directs the agency or institution, other recipient, or third party to submit a written response and other relevant information, as set forth in §99.62, within a specified period of time, including information about its policies and practices regarding education records. (b) The Office notifies the complainant if it does not initiate an investigation because the complaint fails to meet the requirements of §99.64. (Authority: 20 U.S.C. 1232g(g)) [73 FR 74855, Dec. 9, 2008, as amen ded at 76 FR 75643, Dec. 2, 2011] § 99.66 What are the responsibilities of the Office in the enforcement process? (a) The Office reviews a complaint, if any, information submitted by the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or third party outside of an educational agency or institution and any other relevant information. The Office may permit the parties to submit further written or oral arguments or information. (b) Following its investigation, the Office provides to the complainant, if any, and the educational agency or institution, other recipient, or third party a written notice of its findings and the basis for its findings. (c) If the Office finds that an educational agency or institution or other recipient has not complied with a provision of the Act or this part, it may also fin d that the failure to comply was based on a policy or practice of the agency or institution or other recipient. A notice of findings issued under paragraph (b) of this section to an educational agency or institution, or other recipient that has not complie d with a provision of the Act or this part (1) Includes a statement of the specific steps that the agency or institution or other recipient must take to comply; and (2) Provides a reasonable period of time, given all of the circumstances of the case, duri ng which the educational agency or institution or other recipient may comply voluntarily.

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134 (d) If the Office finds that a third party outside of an educational agency or institution has not complied with the provisions of §99.31(a)(6)(iii)(B) or has imprope rly redisclosed personally identifiable information from education records in violation of §99.33, the Office's notice of findings issued under paragraph (b) of this section (1) Includes a statement of the specific steps that the third party outside of th e educational agency or institution must take to comply; and (2) Provides a reasonable period of time, given all of the circumstances of the case, during which the third party may comply voluntarily. (Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g)) [76 FR 75643, Dec. 2, 2011] § 99.67 How does the Secretary enforce decisions? (a) If an educational agency or institution or other recipient of Department funds under any program administered by the Secretary does not comply during the period of time set un der §99.66(c), the Secretary may take any legally available enforcement action in accordance with the Act, including, but not limited to, the following enforcement actions available in accordance with part D of the General Education Provisions Act (1) Wit hhold further payments under any applicable program; (2) Issue a complaint to compel compliance through a cease and desist order; or (3) Terminate eligibility to receive funding under any applicable program. (b) If, after an investigation under §99.66, the Secretary finds that an educational agency or institution, other recipient, or third party has complied voluntarily with the Act or this part, the Secretary provides the complainant and the agency or institution, other recipient, or third party with writt en notice of the decision and the basis for the decision. (c) If the Office finds that a third party, outside the educational agency or institution, violates §99.31(a)(6)(iii)(B), then the educational agency or institution from which the personally identif iable information originated may not allow the third party found to be responsible for the violation of §99.31(a)(6)(iii)(B) access to personally identifiable information from education records for at least five years. (d) If the Office finds that a State or local educational authority, a Federal agency headed by an official listed in §99.31(a)(3), or an authorized representative of a State or local educational authority or a Federal agency headed by an official listed in §99.31(a)(3), improperly redisclose s personally identifiable information from education records, then the educational agency or institution from which the personally identifiable information originated may not allow the third

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135 party found to be responsible for the improper redisclosure acces s to personally identifiable information from education records for at least five years. (e) If the Office finds that a third party, outside the educational agency or institution, improperly rediscloses personally identifiable information from education records in violation of §99.33 or fails to provide the notification required under §99.33(b)(2), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation access to personally identifiable information from education records for at least five years. (Authority: 20 U.S.C. 1232g(b)(4)(B) and (f); 20 U.S.C. 1234c) [76 FR 75643, Dec. 2, 2011] Appendix A to Part 99 Crimes of Violence Definitions Arson Any willful or malicious burning or attempt to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc. Assault Offenses An unlawful attack by one person upon another. N (a) Aggravated Assault. An unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is acco mpanied by the use of a weapon or by means likely to produce death or great bodily harm. (It is not necessary that injury result from an aggravated assault when a gun, knife, or other weapon is used which could and probably would result in serious injury i f the crime were successfully completed.) (b) Simple Assault. An unlawful physical attack by one person upon another where neither the offender displays a weapon, nor the victim suffers obvious severe or aggravated bodily injury involving apparent broken b ones, loss of teeth, possible internal injury, severe laceration, or loss of consciousness. (c) Intimidation. To unlawfully place another person in reasonable fear of bodily harm through the use of threatening words or other conduct, or both, but without d isplaying a weapon or subjecting the victim to actual physical attack. Note: This offense includes stalking. Burglary

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136 The unlawful entry into a building or other structure with the intent to commit a felony or a theft. Criminal Homicide Manslaughter by Neg ligence The killing of another person through gross negligence. Criminal Homicide Murder and Nonnegligent Manslaughter The willful (nonnegligent) killing of one human being by another. Destruction/Damage/Vandalism of Property To willfully or maliciously de stroy, damage, deface, or otherwise injure real or personal property without the consent of the owner or the person having custody or control of it. Kidnapping/Abduction The unlawful seizure, transportation, or detention of a person, or any combination of these actions, against his or her will, or of a minor without the consent of his or her custodial parent(s) or legal guardian. Note: Kidnapping/Abduction includes hostage taking. Robbery The taking of, or attempting to take, anything of value under confron tational circumstances from the control, custody, or care of a person or persons by force or threat of force or violence or by putting the victim in fear. Note: Carjackings are robbery offenses where a motor vehicle is taken through force or threat of force. Sex Offenses, Forcible Any sexual act directed against another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent. (a) Forcible Rape against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her temporary or permanent mental or physical incapa city (or because of his or her youth). (b) Forcible Sodomy. Oral or anal sexual intercourse with another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent b ecause of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

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137 (c) Sexual Assault With An Object. To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body o f another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical i ncapacity. genitalia. Examples are a finger, bottle, handgun, stick, etc. (d) Forcible Fondling. The touching of the private body parts of another person for the p urpose of sexual gratification, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity. Unlawful, nonforcible sexual intercourse. (a) Incest. Nonforcible sexual intercourse between per sons who are related to each other within the degrees wherein marriage is prohibited by law. (b) Statutory Rape. Nonforcible sexual intercourse with a person who is under the statutory age of consent. (Authority: 20 U.S.C. 1232g(b)(6) and 18 U.S.C. 16) [65 FR 41854, July 6, 2000]

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138 APPENDIX C FLORIDA STATUTES TITLE XLVIII, CHAPTER 1002: STUDENT AND PARENTAL RIGHTS AND EDUCATION CHOICES 1002.22 Student records and reports; rights of parents and students; notification; penalty. (1) PURPOSE. The purpose of this section is to protect the rights of students and their parents with respect to student records and reports as created, maintained, and used by public educational institutions in the state. The intent of the Legislature is that students and their parents shall have rights of access, rights of challenge, and rights of privacy with respect to such records and reports, and that rules shall be available for the exercise of these rights. (2) DEFINITIONS. As used in this section: (a) responsible for the management and administration of any public educational body or unit, or the chief executive officer's designee for student records; that is, the district school supe rintendent, the director of a career center, the president of a public postsecondary educational institution, or their designees. (b) listed number, date and place o f birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution at tended by the student. (c) are created, maintained, and used by public educational institutions, including all material that is incorporated into each student 's cumulative record folder and intended for school use or to be available to parties outside the school or school system for legitimate educational or research purposes. Materials that shall be considered as part of a student's record include, but are not necessarily limited to: identifying data, including a student's social security number; academic work completed; level of achievement records, including grades and stand t ardized achievement test scores; attendance data; scores on standardized intelligence aptitude, and psychological tests; interest inventory results; health data; family background information; teacher or counselor ratings and observations; verified reports of serious or recurrent behavior patterns; and any other evidence, knowledge, or in formation recorded in any medium, including, but not limited to, handwriting, typewriting, print, magnetic tapes, film, microfilm, and microfiche, and maintained and used by an educational agency or institution or by a person acting for such agency or inst 1. Records of instructional, supervisory, and administrative personnel, and educational personnel ancillary to those persons, that are kept in the sole possession of the maker of the reco rd and are not accessible or revealed to any other person except a substitute for any of such persons. An example of records of this type is instructor's grade books.

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139 2. Records of law enforcement units of the institution that are maintained solely for la w enforcement purposes and that are not available to persons other than officials of the institution or law enforcement officials of the same jurisdiction in the exercise of that jurisdiction. 3. Records made and maintained by the institution in the norma l course of business that relate exclusively to a student in his or her capacity as an employee and that are not available for use for any other purpose. 4. Records created or maintained by a physician, psychiatrist, psychologist, or other recognized prof essional or paraprofessional acting in his or her professional or paraprofessional capacity, or assisting in that capacity, that are created, maintained, or used only in connection with the provision of treatment to the student and that are not available t o anyone other than persons providing such treatment. However, such records shall be open to a physician or other appropriate professional of the student's choice. 5. Directory information as defined in this section. 6. Other information, files, or data that do not permit the personal identification of a student. 7. Letters or statements of recommendation or evaluation that were confidential under Florida law and that were received and made a part of the student's educational records prior to July 1, 197 7. 8. Copies of the student's fingerprints. No public educational institution shall maintain any report or record relative to a student that includes a copy of the student's fingerprints. (d) been enrolled in any instructional program or activity conducted under the authority and direction of an institution comprising a part of the state system of public education and with respect to whom an educational institution maintains educational records and reports or personally identifiable information, but does not include a person who has not been in attendance as an enrollee at such institution. (3) RIGHTS OF PARENT OR STUDENT. The parent of any student who attends or has attended any public school, career center, or public postsecondary educational institution shall have the following rights with respect to any records or reports created, maintained, and used by any public educational institution in the state. However, whenever a student has attaine d 18 years of age, or is attending a postsecondary educational institution, the permission or consent required of, and the rights accorded to, the parents of the student shall thereafter be required of and accorded to the student only, unless the student i s a dependent student of such parents as defined in 26 U.S.C. s. 152 (s. 152 of the Internal Revenue Code of 1954). The State Board of Education shall adopt rules whereby parents or students may exercise these rights: (a) Right of access.

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140 1. Such parent or student shall have the right, upon request directed to the appropriate school official, to be provided with a list of the types of records and reports, directly related to students, as maintained by the institution that the student attends or has atten ded. 2. Such parent or student shall have the right, upon request, to be shown any record or report relating to such student maintained by any public educational institution. When the record or report includes information on more than one student, the par ent or student shall be entitled to receive, or be informed of, only that part of the record or report that pertains to the student who is the subject of the request. Upon a reasonable request therefor, the institution shall furnish such parent or student with an explanation or interpretation of any such record or report. 3. Copies of any list, record, or report requested under the provisions of this paragraph shall be furnished to the parent or student upon request. 4. The State Board of Education shall adopt rules to be followed by all public educational institutions in granting requests for lists, or for access to reports and records or for copies or explanations thereof under this paragraph. However, access to any report or record requested under the p rovisions of subparagraph 2. shall be granted within 30 days after receipt of such request by the institution. Fees may be charged for furnishing any copies of reports or records requested under subparagraph 3., but such fees shall not exceed the actual co st to the institution of producing such copies. (b) Right of waiver of access to confidential letters or statements. A parent or student shall have the right to waive the right of access to letters or statements of recommendation or evaluation, except that such waiver shall apply to recommendations or evaluations only if: 1. The parent or student is, upon request, notified of the names of all persons submitting confidential letters or statements. 2. Such recommendations or evaluations are used solely for the purpose for which they were specifically intended. Such waivers may not be required as a condition for admission to, receipt of financial aid from, or receipt of any other services or benefits from, any public agency or public educational instituti on in this state. (c) Right to challenge and hearing. A parent or student shall have the right to challenge the content of any record or report to which such person is granted access under paragraph (a), in order to ensure that the record or report is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student and to provide an opportunity for the correction, deletion, or expunction of any inaccurate, misleading, or otherwise inappropriate data or material contained therein. Any challenge arising under the provisions of this paragraph may be settled through informal meetings or discussions between the parent or student and appropriate officials of the educational institution. If the parties at such a meeting agree to make corrections, to make deletions, to expunge material, or to add a statement of explanation or rebuttal to the file, such agreement shall be reduced to writing and signed by the parties; and the appropriate school

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141 officials shall take the necessary acti ons to implement the agreement. If the parties cannot reach an agreement, upon the request of either party, a hearing shall be held on such challenge under rules adopted by the State Board of Education. Upon the request of the parent or student, the hearin g shall be exempt from the requirements of s. 286.011. Such rules shall include at least the following provisions: 1. The hearing shall be conducted within a reasonable period of time following the request for the hearing. 2. The hearing shall be conducted, and the decision rendered, by an official of the educational institution or other party who does not have a direct interest in the outcome of the hearing. 3. The parent or student shall be afforded a full and fair opportunity to present evidenc e relevant to the issues raised under this paragraph. 4. The decision shall be rendered in writing within a reasonable period of time after the conclusion of the hearing. 5. The appropriate school officials shall take the necessary actions to implement t he decision. (d) Right of privacy. Every student has a right of privacy with respect to the educational records kept on him or her. Personally identifiable records or reports of a student, and any personal information contained therein, are confidential a nd exempt from s. 119.07 (1). A state or local educational agency, board, public school, career center, or public postsecondary educational institution may not permit the release of such records, reports, or information without the written consent of the st udent's parent, or of the student himself or herself if he or she is qualified as provided in this subsection, to any individual, agency, or organization. However, personally identifiable records or reports of a student may be released to the following per sons or organizations without the consent of the student or the student's parent: 1. Officials of schools, school systems, career centers, or public postsecondary educational institutions in which the student seeks or intends to enroll; and a copy of such records or reports shall be furnished to the parent or student upon request. 2. Other school officials, including teachers within the educational institution or agency, who have legitimate educational interests in the information contained in the records 3. The United States Secretary of Education, the Director of the National Institute of Education, the Assistant Secretary for Education, the Comptroller General of the United States, or state or local educational authorities who are authorized to receiv e such information subject to the conditions set forth in applicable federal statutes and regulations of the United States Department of Education, or in applicable state statutes and rules of the State Board of Education. 4. Other school officials, in co nnection with a student's application for or receipt of financial aid.

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142 5. Individuals or organizations conducting studies for or on behalf of an institution or a board of education for the purpose of developing, validating, or administering predictive tes ts, administering student aid programs, or improving instruction, if the studies are conducted in a manner that does not permit the personal identification of students and their parents by persons other than representatives of such organizations and if the information will be destroyed when no longer needed for the purpose of conducting such studies. 6. Accrediting organizations, in order to carry out their accrediting functions. 7. Early learning coalitions and the Agency for Workforce Innovation in orde r to carry out their assigned duties. 8. For use as evidence in student expulsion hearings conducted by a district school board under chapter 120. 9. Appropriate parties in connection with an emergency, if knowledge of the information in the student's ed ucational records is necessary to protect the health or safety of the student or other individuals. 10. The Auditor General and the Office of Program Policy Analysis and Government Accountability in connection with their official functions; however, excep t when the collection of personally identifiable information is specifically authorized by law, any data collected by the Auditor General and the Office of Program Policy Analysis and Government Accountability is confidential and exempt from s. 119.07 (1) a nd shall be protected in a way that does not permit the personal identification of students and their parents by other than the Auditor General, the Office of Program Policy Analysis and Government Accountability, and their staff, and the personally identi fiable data shall be destroyed when no longer needed for the Auditor General's and the Office of Program Policy Analysis and Government Accountability's official use. 11.a. A court of competent jurisdiction in compliance with an order of that court or the attorney of record in accordance with a lawfully issued subpoena, upon the condition that the student and the student's parent are notified of the order or subpoena in advance of compliance therewith by the educational institution or agency. b. A person or entity in accordance with a court of competent jurisdiction in compliance with an order of that court or the attorney of record pursuant to a lawfully issued subpoena, upon the condition that the student, or his or her parent if the student is either a minor and not attending a postsecondary educational institution or a dependent of such parent as defined in 26 U.S.C. s. 152 (s. 152 of the Internal Revenue Code of 1954), is notified of the order or subpoena in advance of compliance therewith by the educa tional institution or agency. 12. Credit bureaus, in connection with an agreement for financial aid that the student has executed, if the information is disclosed only to the extent necessary to enforce the terms or conditions of the financial aid agreeme nt. Credit bureaus shall not release any information obtained under this paragraph to any person.

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143 13. Parties to an interagency agreement among the Department of Juvenile Justice, school and law enforcement authorities, and other signatory agencies for th e purpose of reducing juvenile crime and especially motor vehicle theft by promoting cooperation and collaboration, and the sharing of appropriate information in a joint effort to improve school safety, to reduce truancy and in school and out of school sus pensions, and to support alternatives to in school and out of school suspensions and expulsions that provide structured and well supervised educational programs supplemented by a coordinated overlay of other appropriate services designed to correct behavio rs that lead to truancy, suspensions, and expulsions, and that support students in successfully completing their education. Information provided in furtherance of the interagency agreements is intended solely for use in determining the appropriate programs and services for each juvenile or the juvenile's family, or for coordinating the delivery of the programs and services, and as such is inadmissible in any court proceedings before a dispositional hearing unless written consent is provided by a parent or o ther responsible adult on behalf of the juvenile. 14. Consistent with the Family Educational Rights and Privacy Act, the Department of Children and Family Services or a community based care lead agency acting on behalf of the Department of Children and Fa mily Services, as appropriate. This paragraph does not prohibit any educational institution from publishing and releasing to the general public directory information relating to a student if the institution elects to do so. However, no educational institut ion shall release, to any individual, agency, or organization that is not listed in subparagraphs 1. 14., directory information relating to the student body in general or a portion thereof unless it is normally published for the purpose of release to the p ublic in general. Any educational institution making directory information public shall give public notice of the categories of information that it has designated as directory information for all students attending the institution and shall allow a reasona ble period of time after the notice has been given for a parent or student to inform the institution in writing that any or all of the information designated should not be released. (4) NOTIFICATION. Every parent and student entitled to rights relating to student records and reports under the provisions of subsection (3) shall be notified annually, in writing, of such rights and that the institution has a policy of supporting the law; the types of information and data generally entered in the student recor ds as maintained by the institution; and the procedures to be followed in order to exercise such rights. The notification shall be general in form and in a manner to be determined by the State Board of Education and may be incorporated with other printed m aterials distributed to students, such as being printed on the back of school assignment forms or report cards for students attending kindergarten or grades 1 through 12 in the public school system and being printed in college catalogs or in other program announcement bulletins for students attending postsecondary educational institutions. (5) PENALTY. In the event that any public school official or employee, district school board official or employee, career center official or employee, or public postseco ndary educational institution official or employee refuses to comply with any of the provisions of this section, the aggrieved parent or student shall have an immediate right to bring an action in the circuit court to

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144 enforce the violated right by injuncti on. Any aggrieved parent or student who brings such an action and whose rights are vindicated may be awarded attorney's fees and court costs. (6) APPLICABILITY TO RECORDS OF DEFUNCT INSTITUTIONS. The provisions of this section also apply to student record s that any nonpublic educational institution that is no longer operating has deposited with the district school superintendent in the county where the nonpublic educational institution was located. History. s. 94, ch. 2002 387; s. 4, ch. 2004 356; s. 78, c h. 2004 357; s. 13, ch. 2004 484.

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145 APPENDIX D FLORIDA ADMINISTRATI VE CODE DEPARTMENT: DEPARTMENT OF EDUCATION DIVISION: STATE BOARD OF EDUCATION CHAPTER: FINANCE AND ADMINISTRATION RULE: 6A 1.0955 RULE TITLE : EDUCATION RECORDS (1) Purposes. This rule applies to education records maintained to facilitate the instruction, guidance, and educational progress of pupils and adult students in programs operated under the authority and direction of a district school board or other agency or institution as defined in Section 1002.22(1), F.S. This rule is intended to further the intent of Section 1002.22(2), F.S., that the rights of students and their parents with respect to education records created, maintained, or used by public education al institutions and agencies shall be protected in accordance with the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. s. 1232g, the implementing regulations issued pursuant thereto, and Sections 1002.22 and 1002.221 F.S. For the purpose of t (2) Information contained in education records shall be classified as follows: (a) Category A: Information fo r each student which shall be kept current while the student is enrolled and retained permanently in the manner prescribed by Section 1001.52(2), F.S. (b) Category B: Information which is subject to periodic review and elimination when the information is n o longer useful in the manner prescribed by Section 1001.52(3), F.S. (3) Content of Category A records. The following information shall be maintained for each student: (b) Authenticated birthdate, place of birth, race, ethni city and sex, (c) Last known address of the student, (e) Name and location of last school attended, (f) Number of days present and absent, date enrolled and date withdrawn, (g) Courses taken and record o f achievement, such as grades, units, or certification of competence, (h) Date of graduation or date of program completion, and (i) Records of requests for access to and disclosure of personally identifiable information from the education records of the st udent as required by FERPA. (4) Content of Category B records. These records may include but are not limited to the following: (a) Health information and health care plans, (b) Family background data, (c) Standardized test scores, (d) Educational and care er plans, (e) Honors and activities,

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146 (f) Work experience reports, (g) Teacher comments, (h) Reports of student services or exceptional student staffing committees including all information required by Section 1001.42(13), F.S., (i) Correspondence from community agencies or private professionals, (j) Driver education certificate, (k) List of schools attended, (l) Written agreements of corrections, deletions or expunctions as a result of meetings or hearings to amend educational records, and (m) Records designated for retention by the Florida Department of State in General Records Schedule GS7 for Public Schools Pre K 12, Adult and Vocational/Technical. (5) School districts shall maintain sufficient information, to include social security n umbers for adult students enrolled in a postsecondary program so that they can be located after they have either withdrawn or completed a program of study. (6) Each school board shall adopt a policy for educational records which shall include: (a) Provisi ons for an annual written notice and other notices necessary to inform the adult students or the parent or guardian of students of their rights as defined in Section 1002.22(2), F.S., and FERPA. The district shall develop methods of notice for informing th e parent or guardian of students, or adult students unable to comprehend a written notice in English, (b) Provisions for permitting the adult student or the parent or guardian of the student who is or has been in attendance in the school district to inspe ct and review the education records of the student. The district shall comply with a request within a reasonable period of time, but in no case more than thirty (30) days after it has been made, (c) Provisions for adult students or the parent or guardian of students to exercise the right of waiver of access to confidential letters or statements. School districts may not require that adult students or the parent or guardian of students waive any of their rights under Section 1002.22(2), F.S., and FERPA, ( d) A schedule of fees and charges for copies of education records which charges no more than the fees and charges for public records as set forth in Section 119.07, F.S. In no circumstance shall the cost reflect the costs to retrieve the education records, (e) A listing of the types and locations of education records maintained by the educational agency and the titles and addresses of the officials responsible for those records, (f) Provisions for disclosure of personally identifiable information where pr ior written consent of the adult student or the parent or guardian of students is not required, (g) Provisions for disclosure of personally identifiable information where prior written consent of the adult student or the parent or guardian of a student, a s appropriate, is required, and provisions for maintaining records of requests and disclosures, (h) Provisions for the maintenance and security of student records, including procedures to ensure the confidentiality of student records and safeguard records from unauthorized or unintentional access, (i) Provisions for disclosure of personally identifiable information in health and safety emergencies, (j) Provisions for disclosure of directory information, (k) Provisions for challenging the content of any r ecord which the adult student or the parent or

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147 guardian of a student believe to be inaccurate, misleading or a violation of the right of privacy and for providing an opportunity for amendment of such information, and (l) Provisions for ensuring the accurac y of information maintained and for periodic review and elimination of information no longer useful,in the manner prescribed by Section 1001.52(3), F.S. (7) Procedures for transfer of education records. (a) The transfer of records shall be made immediately upon written request of an adult student, a parent or guardian of a student or a receiving school. The principal or designee shall transfer a copy of all Category A and Category B information and shall retain a copy of Category A information; h owever, student records which are required for audit purposes for programs listed in Section 1010.305, F.S., shall be maintained in the district for the time period indicated in Rule 6A 1.04513, F.A.C. (b) The transfer of education records shall not be del ayed for nonpayment of a fee or fine assessed by the school. (8) Security of education records. (a) The school principal or designee shall be responsible for the privacy and security of all student records maintained in the school. (b) The superintendent of schools or designee shall be responsible for the privacy and security of all student records that are not under the supervision of a school principal. (c) Institutions and agencies that are not part of a school district shall designate the office or pos ition responsible for the privacy and security of all student records. Rulemaking Authority 1001.02(1), 1002.22(3), 1003.25(2), 1008.405 FS. Law Implemented 1001.42(13), 1001.52(2), (3), 1002.22(2), (3),1002.221, 1003.25, 1008.386, 1008.39, 1008.405 FS. Hi story New 4 11 70, Repromulgated 12 5 74, Revised 6 1 75, Amended 10 7 75, 2 21 77, 3 1 78, 5 24 81, Formerly 6A 1.955, Amended 6 17 87, 1 2 95, 10 25 10.

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148 LIST OF REFERENCES 5 U.S.C. § 552a (1974). 5 U.S.C § 552 (1966). 20 U.S.C. § 1232g (1974). 20 U.S.C. § 1681 (1972). 34 CFR Part 99. Access to records by human rights advocacy committee. Cf., Op. Att'y Gen. Fla. 87 08. The American Presidency Project, www.presidency.ucsb.edu/ws/index.php?pid=4364 (last visited March 25, 2012), President Richard Nixon, Radio Address About the American Right of Privacy (February 23, 1974). S chools C an S ay A Principal Leadership (High School Edition) 4, no. 4 (December 2003): 67 70. Art I, § 23, Fla. Const Psychology in the Schools 38, no. 2 (March 2001): 141. Student Press Law Center XXVII, no. 3 (Fall 2006): 11. Belanger v. Nashua, N.H. Sch. Dist ., 856 F. Supp. 40, 41, 50 (D.N.H. 1994). Gives Dangerous Breadth to Ferpa in its Confusing and Contradictory Falvo V. Owasso Br igham Young University Education & Law Journal no. 2 (June 2001): 327 Bethel School District No. 403 v. Fraser 478 U.S. 675 (1986). Bevington v. Ohio University 93 Fed. Appx. 748, (6th Cir.2004). Black's Law Dictionary 8th ed. St. Paul, West Publish ing, 2004. Qualitative Research Journal 9, no. 2 (January 1, 2009): 27 40.

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149 Congress, Senate, Joint Statement in Explanation of Buckley/Pell Amendment 93 rd Cong., 2 nd sess., Congressional Record 120, (13 December 1974): 39862 39863. Congressional Record, Senate, May 9, 1974, at 13952. Cudjoe v. Indep. Sch. Dist. No. 12 297 F.3d. 1058 (10th Cir. 2002). Catholic University Law Review 46 (1996): 617. Dandridge v. Williams, 397 U.S. 471, 486 87 (1970). Desyllas v. Bernstine 351 F.3d 934, 944 (9th Cir. 2003). Doe v. Anonymous Unnamed Sch. Employees & Officials of Cornell Univ. Coll. of Veterinary Med., 87 Fed.Appx. 788 (2d Cir.2004). Doe v. Gonzaga Univ., 99 Wn.App. 338, 363 (2000). Falvo v. Owasso Independent School District 233 F.3d 1203 (10th Cir. 2000). Family Educational Rights & Privacy Act of 1974: Recommendations for Realigning Creighton Law Review 41, no. 2 (February 2008): 277 314. F.A.T. v. State of Florida 690 So. 2d 1347 (Fla. 1st DCA 1997). Fay v. South Colonie Central Sch. Dist ., 802 F.2d 21, 33 (2nd Cir. 1986). Fla. Admin. Code R. 6A 1.0955. Fla. Stat. § 228.093 (2001). Fla. Stat. § 1002.22 (2009). Florida Department of Education v. Cooper, 858 So. 2d 394 (Fla. 1 st DCA 2003). Florida State University v. Hatton 672 So.2d 576, 579 (Fla. 1st DCA 1996). American Behavioral Scientist 52, no. 10 (June 2009): 1465 1485. Gonzaga University v. Doe 536 U.S. 273 (2002). Education 101, no. 4 (Summer81 19 81): 335.

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150 Hazelwood School District v. Kuhlmeier 484 U.S. 260 (1988). HRS and access to school records AGO 87 10 (1987). Human Rights Advocacy Committee for Developmental Services for District VIII v. Lee County School Board, 457 So.2d 522 (Fla. 2 nd DCA 1984). Humphries, Stephanie. "Institutes of higher education, safety swords, and privacy shields: reconciling FERPA and the common law." Journal of College and University Law 35.1 (2008): 145 215. Johnson v. Deluz, 875 So. 2d 1 (Fla. 4 th DCA 2004). http://www2.ed.gov/policy/gen/guid/fpco/ferpa/leg history.html Lu ban, David. "The Warren Court and the Concept of a Right." Harvard Civil Rights Civil Liberties Law Review 34, no. 1 (Winter99 1999): 7 37. Indiana Law Journal n o. 74: 1321 1345. Marston v. Gainesville Sun Publishing Co. 341 So. 2d 783 ( Fla. 1st DCA 1976). Maynard v. Greater Hoyt Sch. Dist. 876 F. Supp. 1104, 1107 (D.S.D. 1995). The Miami Student v. Miami University 680 N.E.2d 956 (Ohio 1997). Office of the Attorney General, Government in the Sunshine Manual (First Amendment Foundation, 2009). Ohio Rev. Code § 49.43. Ohio Rev. Code Ann. § 149.43. Owasso Independent School District v. Falvo 534 U.S. 426 (2002). Risica v. Dumas 466 F. Supp. 2d 434 (D. Conn. 2006). School District No. I 011 v. Falvo and the State of the Family Educational Rights and Cardozo Women's L.J 9. (2002 2003): 27 66. Russo, C Education & the Law 14, no. 3 (2002): 181 187.

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151 Samberg Columbia Law Review 103, no. 7 (November 2003): 1838 1887. Sanchez v. Johnson, 416 F.3d 1051 (2005). San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37 (1973) Dispelling the Myth That Ferpa Prohibits C utting Edge Academic Support Widener Law Journal 19, no. 1 (October 2009): 215 276. Shockley v. Svoboda 342 F. 3d 736, (7th Cir. 2003). Slovinec v. DePaul University 332 F.3d 1068 (2003). West Virginia Law Review 108. (2005): 361 394. Tampa Television v. School Bd., 659 So. 2d 331 (Fla. 2 nd DCA 1995). Taylor v. Vermont Dept of Educ ., 313 F. 3d 768 (2nd Cir. 2002). Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969). United States v. Miami University and Ohio State University 91 F. Supp. 2d 1132 (S.D. Oh. 2000). U.S. Const. amend. I. U.S. Const. amend. XIV, §1. U.S. Department of Education. 1997. Sharing information: A Guide to the Educational Rights and Privacy Act. Washington, D.C.: U.S. Department of Education. U.S. House. "Resolved: That More Stringent Control Should be Imposed Upon Government Agencies Gath ering Information About U.S. Citizens," (H. Doc. 92 167). 1971. Federal Register 61, no. 226 (21 November 1996): 529292. WFTV, Inc. v. Sch. Bd. of Seminole 874 So.2d 48, 53 (Fla. 5th DCA 2004). New Directions for Student Services no. 94 (Summer 2001): 39. Woodruff v. Hamilton Township Public Schools, 305 Fed. App'x 833, 836 (3d Cir. 2009).

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152 Phi Delta Kappan 82, no. 3 (November 2000): 253.

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153 BIOGRAPHICAL SKETCH Sheryl Dale Rogers was born in Honolulu, Hawaii in 1964. She attended Yorktown High School in Arlington, Virginia, and was graduated in 1982. She studied psychology at the University of Virginia and graduated with a Bachelor of Arts degree in 1986. After working for several years in the hospitality industry, she returned to school in orde r to become certified to teach elementary school. After an additional sixty undergraduate hours, Sheryl began her career as a teacher in 1992. After relocating to Naples, Florida in 1998, Sheryl began working as a teacher for the District School Board o f Collier County. She worked as a teacher of gifted students, a fourth grade teacher, a computer teacher, and a curriculum specialist. In 2003 she earned a Master of Education degree in Educational Leadership from Florida Gulf Coast University. Since th at time, she has been employed as a dean of students at an elementary school as well as an assistant principal and a principal In 2007 she embarked upon her terminal degree in educational leadership. Working with a cohort of her colleagues, she accepted the challenge of a demanding program offered through the University of Florida in a blended online/in person format. She currently resides in Naples, Florida with her fianc and two energetic dogs. She enjoys visits from her adult children, who also work toward comple ting their scholastic endeavors.