School that Shared Education Records with Psychologist in Preparation for Special Education Due Process Hearing Did Not Violate FERPA

Monday, July 9, 2007
Contributed by: Andrea L. Slater Gulley

The Family Educational Rights and Privacy Act ("FERPA") is a Federal law that gives parents the right to have access to their child's education records, the right to seek to have the records amended, and the right to have some control over the disclosure of the records. "Education records" are those records that contain information directly related to a student and which are maintained by an educational agency or by a party acting for the agency. As a general rule, school districts must obtain parental consent prior to disclosing education records to third parties. However, a number of exceptions to this general rule exist.

In Letter re: Greater Clark County School District, a parent alleged that a school district improperly disclosed information from their child's education records when the district, without written consent from the parent, disclosed information to a psychologist consultant. Letter re: Greater Clark County School District, 10 FAB 6, 106 LRP 53018 (July 20, 2006). In its response to the parent's complaint, the Family Policy Compliance Office ("FPCO") determined that the district did not violate FERPA in sharing information from the student's education records with the psychologist consultant and instead determined that an exception to the general rule applied.

The FPCO explained, "FERPA specifically exempts from the prior written consent requirement those disclosures of education records that are made to school officials whom the agency or institution has determined to have legitimate educational interest. A school official can include...other staff that are employed or contracted by the school. Generally, if a school official is performing an official task for the school that requires access to information in education records, that official has a legitimate educational interest." Id. at 2. FERPA recognizes that school districts do not perform all operations in-house and often obtain business services with professionals, such as doctors. Id. Accordingly, school districts are not prohibited from disclosing education records to "outside persons performing professional, business, or similar services related to the institution's mission that it would otherwise provide for itself." Id.

The FPCA determined that the Greater Clark school district made the disclosure in order to receive the psychologist's professional opinion as part of the district's preparation for a due process hearing. Given the circumstances, the psychologist met the general criteria to be considered a "school official" with a "legitimate educational interest," and the school district did not err in sharing the education records. Id. Accordingly, the FPCA declined to initiate an investigation based upon the parent's complaint.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.