Dated: July 29, 2002

Honorable C. L. "Butch" Otter

Member, House of Representatives

802 W. Bannock, Suite 101

Boise, Idaho 83702

Dear Mr. Otter:

This is in response to your July 11, 2002, letter to former Assistant
Secretary Rebecca Campoverde, on behalf of your constituent X. In his
July 10, 2002, letter to you, X raises several questions about the
Family Educational Rights and Privacy Act (FERPA) and the Individuals
With Disabilities in Education Act (IDEA), particularly with regard to
limitations on "the right of parents to obtain a copy of records
concerning \[a child\] and his parents from a public school." I have
been asked to respond to the portion of X letter regarding FERPA because
this Office administers FERPA. Because IDEA has some requirements that
are not found in FERPA, which in some cases may afford rights to special
education parents that are not afforded by FERPA, the Department's
Office of Special Education Program (OSEP) will respond to his IDEA
questions by separate letter.

Specifically, X asked if FERPA and IDEA require schools to provide
parents with copies of education records, if schools must provide
parents with "subsets" of records upon request, if schools must provide
parents an "attestation/affidavit" regarding the records, if "sole
possession records" become "education records" once released, if records
concerning parents must be made available to them upon request, and if
FERPA prohibits a representative with consent from the parent from
inspecting and reviewing education records without the parent
accompanying him or her. The applicability of FERPA to these issues is
explained below.

FERPA protects the privacy rights of parents in their children's
"education records." It applies to educational agencies or institutions
that receive federal funds under any program administered by the
Secretary of Education, including IDEA. In particular, FERPA gives
parents the right to inspect and review their children's education
records, the right to seek to have the records amended, and the right to
have some control over the disclosure of information from the records.
20 U.S.C. § 1232g; 34 CFR Part 99. FERPA provides that a parent must
provide a signed and dated written consent before an educational agency
or institution may disclose personally identifiable information from a
student's education records, except under conditions specified by
statute. 34 CFR § 99.31.

The term \"education records\" means those records that are:

1.  Directly related to a student; and

2.  Maintained by an educational agency or institution or by a person
    acting for the agency or institution.

34 CFR § 99.3 \"Education records.\" Clearly, records on a student
receiving services under IDEA are "education records" under FERPA.

FERPA requires that educational agencies and institutions provide
parents the opportunity to inspect and review the student's education
records within 45 days after receipt of a request. 34 CFR § 99.10(b). A
school is required by FERPA to provide copies of education records if a
failure to do so would effectively prevent the parent from exercising
the right to inspect and review the records. 34 CFR § 99.10(d). For
example, a school could be required to provide copies if the parent does
not live within commuting distance of the school. In such a case, the
school must provide a copy of the education records or make other
arrangements in accordance with FERPA. An example of a permissible
arrangement would be for the school to send the records to a school near
to the parent. The parent could then go to that school to inspect and
review the records. Further, FERPA does not contain any provision that
prohibits an educational agency or institution from providing copies of
education records to a parent.

FERPA does not require schools to create or maintain education records,
or to re-create lost or destroyed education records. However, an
institution may not destroy education records if there is an outstanding
request to inspect and review the records. 34 CFR § 99.10(e). FERPA does
not otherwise address the destruction of education records by an
institution.

X described a situation where an institution provides a parent with
access to or copies of a large number of education records, and the
parent then requests that the school arrange the records in "subsets"
consisting of some criteria described by the parent. He asked whether
FERPA requires the school to organize the records into the "subsets."
Additionally, X asked whether FERPA requires an institution to provide
to a parent various attestations concerning the records it provides. He
cited examples such as attesting that no records have been destroyed as
of a given date, that the records were received from specific, named
locations, or that the institution certifies that it provided the
records in full compliance with FERPA.

Generally, an institution is required to conduct a reasonable search for
the education records requested. If a parent makes a "blanket" request
for a large portion of a child's education records and the parent
believes that he or she has not been provided certain records that were
encompassed by that request, the person should submit a follow-up
request clarifying the additional records that are needed. While an
institution is obligated to make a reasonable effort to provide the
records requested, FERPA does not require the institution to organize
the records it provides in a manner specified by the parent. In
addition, FERPA does not require an institution to provide any
attestations regarding education records.

X asked about "sole possession records" under FERPA. Exempted from the
definition of "education records" and, thus, from the protection of
FERPA, are records that are kept in the sole possession of the maker of
the record and are not accessible or revealed to any other person except
a temporary substitute for the maker of the record. 34 CFR § 99.3(b)(l)
"Education records." Once the contents or information recorded in a sole
possession record is disclosed to any party other than a temporary
substitute for the maker of the record, that record becomes an
"education record" under FERPA. Generally sole possession records are of
the nature of informal "memory jogger" notes.

X asked whether a record held by a school that concerned a parent would
be an "education record" covered by FERPA. FERPA prohibits the
disclosure of "personally identifiable information" from a student's
education records. Section 99.3 of the FERPA regulations defines
"personally identifiable information" as information that includes but
is not limited to:

(a) the student's name;

(b) the name of the student's parent or other family member;

(c) the address of the student or the student's family;

(d) a personal identifier, such as the student's social security number
    or student number;

(e) a list of personal characteristics that would make the student's
    identity easily traceable; or

(f) other information that would make the student's identity easily
    traceable.

Thus, records maintained by a school that contain information regarding
a student's parent or other family members would be considered
"education records" protected by FERPA.

Finally, X asked whether FERPA prohibits a person who has written
authorization from a parent from inspecting and reviewing education
records. Under FERPA, an educational agency or institution may permit a
representative of a parent, or any other person, with written consent
from the parent to inspect and review the child's education records, but
such a disclosure is not required. Under FERPA, the only individual a
school is required to provide an opportunity to inspect and review
information is a parent. Therefore, a school may, under FERPA, refuse to
allow a third party, even with consent, access to a student's education
records. There may be different requirements under IDEA regarding this
issue, which will be addressed in the letter from OSEP.

I trust that the above information is helpful in explaining the scope
and limitations of FERPA it relates to X concerns. Should you or your
constituent have further questions about FERPA, please do not hesitate
to contact this Office directly. The address is as follows:

> Family Policy Compliance Office
>
> U. S. Department of Education
>
> 400 Maryland Avenue, S.W.
>
> Washington, DC 20202-4605
>
> Sincerely,
>
> /s/ Ellen Campbell for
>
> LeRoy S. Rooker
>
> Director
>
> Family Policy Compliance Office

cc: Stephanie Lee

Director, OSEP