February 12, 2002

Mr. L. Lee Tyner, Jr.\
Associate University Attorney\
The University of Mississippi\
209 Lyceum\
P.O. Box 1848\
University, Mississippi 38677-1848

Dear Mr. Tyner:

This is in response to your January 25, 2002, letter to this Office in
which you request our opinion concerning an application of the Family
Educational Rights and Privacy Act (FERPA). Specifically, you \"request
an opinion . . . regarding whether certain documents are\" education
records under FERPA. You enclosed a copy of a letter from the University
of Mississippi (University) to the Southeastern Conference (SEC) and a
redacted self-report to the National Collegiate Athletic Association
(NCAA) as examples of the documents you wish us to review. In your
letter, you explain that you previously released similar documents after
removing \"the names of current or former students and any other
personally identifiable information\" in response to a request for the
documents from The Clarion-Ledger, a daily newspaper in Mississippi. You
state you are requesting guidance on whether you may, under FERPA,
disclose the example and similar documents in personally identifiable
form in response to a request from The Clarion-Ledger for an unredacted
version of the documents. This Office administers FERPA, which addresses
issues that pertain to education records.

FERPA is a Federal law that gives parents the right to have access to
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. When a student reaches 18 years of age
or attends a postsecondary institution, he or she becomes an \"eligible
student\" and all rights under FERPA transfer from the parent to the
student. FERPA defines \"education records\" as \"those records, files,
documents, and other materials which -

> \(i\) contain information directly related to a student; and\
> (ii) are maintained by an educational agency or institution or by a
> person acting for such agency or institution.

20 U.S.C. 1232g(a)(4)(i) and (ii). In using the term \"education
records,\" the Department refers to materials that are preserved or
retained by an educational agency or institution, or someone acting for
such agency or institution, as an institutional or official record of
the student. In other words, the term does not include student work that
is created, used, or kept in the classroom and does not become part of
the student\'s institutional record.^1^

FERPA generally prohibits the disclosure of personally identifiable
information derived from education records without the prior written
consent of the eligible student, except in certain specified
circumstances. Based on the information you have provided this Office,
none of the exceptions to the prior written consent provision in § 99.31
applies to The Clarion-Ledger\'s request for unredacted documents. 34
CFR § 99.30 and 99.31.

Please note that section 99.3 of the 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]{.underline}; or\
> (f)[other information that would make the student\'s identity easily
> traceable]{.underline}.

(Emphasis added.)

Based on our review of the letter and sample report you submitted, this
Office has determined that the documents at issue are education records.
We have determined that the documents, in unredacted form, are education
records because they are directly related to the student \-- they
contain specific information such as the name of the student and his
high school - and because the documents are maintained by the
University, and are institutional in nature (they relate to the
school\'s responsibility to self-report violations to the NCAA)^2^.

FERPA does not specifically define \"easily traceable,\" and situations
regarding disclosures of information that could be considered easily
traceable must be analyzed on an individual basis. For example, a
university is in the best position to determine whether a redacted
version of an education record would be easily traceable if disclosed by
the institution. In making this determination, an institution should
take into consideration a number of factors. First, the school should
consider whether the party seeking access to the records has prior
knowledge of the students listed in the education record. In examining
the prior knowledge of a potential recipient, the standard the school
official should apply is whether the individual can trace the identity
of the student without significant amounts of additional searching for
information. Thus, our focus has been on whether the school official
reasonably could have concluded, at the time of the disclosure, that the
disclosure would not make the student\'s identity easy to trace. If an
institution determines that an education record remains easily traceable
to a student even after it has been redacted, the institution would be
prohibited from disclosing the record without the prior written consent
of the student.

I trust that the above is responsive to your inquiry.

Sincerely,

LeRoy S. Rooker\
Director\
Family Policy Compliance Office

1 This interpretation of \"education records\" is the position of the
United States as set out in more detail in an amicus curiae brief
supporting petitioners in Owasso Independent School District No. I-011
v. Falvo No. 00-1073 (S. Ct.). The Supreme Court may rule on the scope
of the term \"education records\" in the above-captioned matter. The
Department will review the Court\'s ruling in this case, and may issue
additional guidance or regulations to further clarify the scope of the
term \"education records.\"

2 In an unreported decision, the Chancery Court of the 1st Judicial
district of Hinds County rules on this issue in 1996. Gannett River
States Publishing Corporation v. Mississippi State University, Case
G95-1795 (July 5, 1996). The court held that the records at issue in
that case - correspondence from the NCAA to the university - were
subject to disclosure under the judicial order exception in FERPA. In
order to apply the exception, the court had to have concluded that the
records were \"education records\" under FERPA. To the extent the
holding contradicts the notion that correspondence to or from the NCAA
is an education record, the Department disagrees with the ruling.