ACCESS TO INFORMATION IN JUVENILE COURT PROCEEDINGS
FERPA gives parents certain rights with respect to their children’s education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level.
NOTE: FERPA is a complex law governing the confidentiality of students' educational records. The following summary is intended solely for the purpose of providing a general overview of the most relevant issues that arise when considering who may access the educational records of a child as these may relate to a juvenile court case. For more information on FERPA, please refer to the statutes and regulations or contact the U.S. Department of Education:
WHAT INFORMATION IS PROTECTED UNDER FERPA?
FERPA applies to records maintained by any state or local educational agency or institution. This includes agencies authorized to direct and control public elementary or secondary or postsecondary institutions; institutions or schools that provide educational services or instruction to students; entities with authority and responsibility under state or local law for the administration of educational functions at the elementary, secondary, or postsecondary level; and all education agencies and institutions that are the recipient of funds under any program administered by the U.S. Secretary of Education.
Education records are broadly defined by FERPA as those records maintained by an educational agency or institution containing personally identifiable information directly related to a student.4 These records may be recorded in any way, including but not limited to handwriting, print, computer media, videotape or audiotape, film, microfilm, and microfiche.
Some common examples of education records include:
The following records are not considered education records, and therefore FERPA protections do not apply:
Pursuant to Connecticut law, a student’s medical and psychological examination records, including health assessments and screenings are confidential except when disclosure is required when a child enrolls in a new school district.5
HOW DISCLOSURE OF A STUDENT'S SCHOOL RECORDS IS AUTHORIZED BY THE PARENT OR STUDENT
The principle presumption of FERPA’s privacy provisions is that the parents have the right to review their child’s education records, including health-related information contained in the education record. Parents also control third-party access to these records and for a third party to gain access to these records, the parent must give written consent for the disclosure.
Who qualifies as a parent?6
While the FERPA statute does not define the term parent, the FERPA regulations define a parent of a student as "a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian."7
What must the consent form contain?
With written consent from the parent, an "eligible youth" over 18, or another individual or entity considered a parent, educators can disclose information from a juvenile’s education record at any time. Third parties seeking access to educational records should always first try to obtain parental consent from the parent to access these records. Authorizations to release educational records should clearly specify the following information for the parent:
When are these rights transferred to the student?
The right to review and control third party access to education records are transferred to the student when he or she turns 18.9
WHEN INFORMATION FROM A STUDENT’S SCHOOL RECORDS CAN BE DISCLOSED WITHOUT CONSENT
Information from a student's education record may be disclosed without prior consent provided one of the exceptions to FERPA’s confidentiality provisions applies. In Connecticut, state law incorporates many of the same exceptions. The most relevant exceptions to juvenile justice and child welfare professionals that permit disclosure without prior consent are:
To other schools when a student is transferring
A student’s education records may be released to a new school district when the student enrolls at the new school and the new school provides written notification to the prior school district.10 The Fostering Connections to Success and Increasing Adoptions Act of 2008 is federal law that requires child welfare agencies to ensure this transfer of records occurs for children in their care.11
To other school officials with a legitimate educational interest
School districts must define the criteria for determining the legitimacy of the educational interest.12 A legitimate educational interest exists when a school official needs to review a student’s education record in order to fulfill his or her professional responsibility.13
A student's records may be released to a state child welfare agency when the agency is legally responsible for the care and protection of the student. Any caseworker or agency representative who has the right to access the student's case plan may have access to the student's educational records. Redisclosure is limited to individuals or entities engaged in addressing the student's education needs.14
To comply with court order or subpoena
The disclosure is permitted when needed to comply with a valid court order or lawfully issued subpoena. The order must be specific in scope and individualized to a particular student. Schools are required to make a reasonable effort to notify the parent of the order or subpoena before releasing the records.15
To state-operated or community detention facilities
FERPA permits states to allow disclosure of student's records to juvenile justice agencies if the disclosure relates to the juvenile justice system’s ability to provide pre-adjudication services to the child. Connecticut has enacted a statute under which school officials may release a student's educational records upon request of a detention facility when the student is confined there.17 Records disclosed are to be used for the sole purpose of providing the student with educational services while in detention. School officials may disclose these records without the prior consent of the student’s parent or guardian though notification of such disclosure to the parent or guardian is required at the time of the disclosure.18 The student's educational records may not be further disclosed without a court order or the written consent of the student's parent or guardian.19
To probation officers prior to the disposition of a delinquency case
When probation officers are conducting their investigation of the case of any child convicted of a delinquent act, schools must disclose certain educational information to probation officers. This includes information related to a student’s overall attendance, academic and discipline history, the student’s educational status (e.g., regular, special education, 504 plan), any history of expulsion, grade retention and/or social promotions, and specialized school placements.20 Schools may disclose information to the juvenile probation officer when the juvenile probation officer presents a valid Authorization to Release Information signed by the parent/guardian. Information may also be disclosed pursuant to a lawfully issued subpoena or valid court order.
To the court when a juvenile is placed on probation
When a student is placed on probation, schools must provide courts with information about the student’s attendance, adjustment and behavior, and any recommendations for conditions for disposition or sentencing. When the court is considering allowing the student to return to school on a conditional basis, the court may request this information and school officials must provide this information in a timely manner.21
To appropriate individuals in health or safety emergencies
Disclosure to appropriate persons in connection with an emergency is permitted if knowledge of the information is needed to protect the health or safety of the student or others.22 The health or safety emergency exception acknowledges that there may be an immediate need for information to avert an on-campus disruption or crisis. School officials determine what constitutes an "emergency" but FERPA narrowly applies the term to circumstances such as criminal acts, usually involving weapons and drugs, or crisis situations that affect schools or the general public's health and safety.23
If the information being disclosed is considered "directory information"
Schools may disclose "directory information" from a student's education record without prior parental consent provided the school has given the parent notice of its intention to do so.24 Directory information is defined by FERPA as "information contained in an education record of a student that would generally not be considered harmful or invasion of privacy if disclosed."25
Pursuant to the FERPA regulations, directory information includes, but is not limited to, the following information about the student:
Schools must notify parents and eligible students annually of their rights under FERPA, and allow parents and eligible students a reasonable amount of time to opt out of directory information disclosures.28 Parents may retain the right to consent to the disclosure of directory information by advising the school they wish to do so.29