|Memorandum to: | Chief State School Officers 
              State Directors of Vocational-Technical Education
              State Directors of Adult Education
              State Directors of Community, Junior and Technical Colleges                                                   
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|From:          | William D. Hansen                                                                                                                                                                                                                                                         
|               | Deputy Secretary of Education                                                                                                                                                                                                                                             
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|Subject:       | Additional Guidance on the Application                of the Family Educational Rights and Privacy Act (FERPA) to Reporting                under the Carl D. Perkins Vocational and Technical Education Act                and the Adult Education and Family Literacy Act
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|Date:          | January 30, 2003                                                                                                                                                                                                                                                          

In response to inquiries from States and education groups,            the Department issued formal guidance on the interplay of the Family            Educational Rights and Privacy Act (FERPA) and the accountability requirements            in the Carl D. Perkins Vocational and Technical Education Act (Perkins            III) and the Adult Education and Family Literacy Act (AEFLA) on January            18, 2001. The guidance presented here, which will become effective April            30, 2003, will supersede the previous guidance and is intended to harmonize            program evaluation requirements in Perkins III and AEFLA with FERPA,            permitting the evaluation functions in the former statutes to be carried            out while protecting the privacy of students as reflected in FERPA.

Specifically, the Department has reviewed the January 18, 2001, memorandum            (2001 memorandum) in light of its concern for the privacy of students'            records and compliance with FERPA. Based on that review, we believe            that further, more specific guidance is needed to avoid application            of the memorandum by the States in a manner that may interfere with            FERPA protections. In addressing these matters, we have focused our            attention on the possible use of the "authorized representatives"            provision in FERPA as legal authority for conducting audits or evaluations            to determine whether Federal program accountability requirements are            being met.

The 2001 memorandum stated that:

| | FERPA permits the disclosure of protected student                information without the prior consent of students in certain, limited                circumstances. (20 U.S.C. § 1232g(b); 34 CFR § 99.31.)                One exception permits the disclosure of information derived from                education records without prior consent to "authorized representatives                of" the Comptroller General of the United States, the Secretary,                the Attorney General or
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| | "State or local educational authorities."                The disclosure must be "in connection with the audit and evaluation                of Federally-supported education programs, or in connection with                the enforcement of the Federal legal requirements which relate to                such programs."                                                                                                                                                                             

Based on this provision, the 2001 memorandum simply concluded that            "a State educational authority may authorize the State UI            [Unemployment Insurance] agency (or other agency that has access to            State UI wage records) to be its representative for the purpose of evaluating            whether local vocational and adult education programs have achieved            the student employment goals established by the State under Perkins            III or AEFLA."

We have reevaluated this conclusion in light of the full text of the            statutory language of FERPA and congressional statements as to its meaning            and purpose. Specifically, in authorizing disclosure to authorized representatives,            § 1232g(b)(1)(C) limits such disclosures to "the conditions            set forth in paragraph (3)," which pertinently provides:

| | Provided, That except when collection of personally                identifiable information is specifically authorized by Federal law,                any data collected 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
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(Emphasis added.) 20 USC § 1232g (b)(3). The multiple references            to "officials" in paragraph (b)(3) reflect a Congressional            concern that the authorized representatives of a State educational authority            be under the direct control of that authority. This conclusion is supported            by the Joint Statement presented by Senators Buckley and Pell while            enacting important amendments to FERPA late in 1974. Specifically, in            explaining the meaning and effect of what is now § 1232g(b)(1)(C),            the Joint Statement provides:

| | Section 438(b)(1) of existing law restricts transfer,                without the consent of parents or students, of personally identifiable                information concerning a student to  auditors from the General                Accounting Office and the Department of Health, Education, and Welfare
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120 Cong. Rec. at 39863 (December 13, 1974). Plainly, the sponsors            of FERPA did not view the concept of "authorized representatives"            in an expansive manner; rather, their vision was closely tied to employees            and officials of, for example, the Comptroller General and the Secretary.

We conclude, therefore, that for the purposes of FERPA, an "authorized            representative" of a State educational authority must be under            the direct control of that authority, e.g., an employee or a            contractor of the authority. Thus, the State educational authority could            not, for example, designate a State department of labor to perform an            audit or evaluation because the department of labor is not under the            educational agency's direct control. However, the following guidance            would permit State educational authorities to work with other State            agencies to obtain information necessary to comply with Perkins III            and AEFLA reporting requirements, while at the same time maintaining FERPA            privacy protections.

Regarding the collection of data, a State educational authority that            maintains the student records should conduct, oversee, or participate            directly in the computer match to ensure that it is carried out            consistent with FERPA requirements. Even if the computer match cannot            be effected in a State educational authority's own facilities, the State            educational authority is responsible for ensuring that any disclosure            of education records of students to carry out an evaluation on its behalf            complies with FERPA, and should maintain oversight and direction of            the matching process. This is because FERPA requires that the information            collected be protected in a manner that does not permit personal identification            of individuals by anyone except the officials of the State educational            authority, and must be destroyed when no longer needed for the purposes            listed in 34 CFR § 99.35(a).

A State educational authority may obtain State unemployment insurance            (UI) wage record data from the State UI agency and conduct the computer            match through its employees or contractors under its direct control            in order to determine the employment status of students. This approach            meets the requirements of FERPA because the State educational authority            has not disclosed personally identifiable information from education            records to an outside entity. Alternatively, if the computer match is            implemented at other facilities, such as at the State UI agency or a            neutral location, an employee of the State educational authority, or            a party under the direct control of the State educational authority,            should conduct the computer match.

The Department anticipates that, in many cases, the State educational            authority will carry out the responsibility of matching student data            with UI records on behalf of all educational institutions participating            in Perkins III and AEFLA. In some cases, however, individual community            colleges and other schools may be given the responsibility for acquiring            employment-related outcome data required by Perkins III and AEFLA, and            providing those outcome data to the State educational authority administering            the program. If the community college or other school chooses to use            UI record matching to comply with the employment-related outcome data            requirements, it will need to follow procedures similar to those applicable            to the State educational authority to ensure that records are maintained            under the direct control of the local educational authority. There are            reasonable strategies for implementing this guidance, such as in cases            where distance is prohibitive for a community college or other school            to send staff to directly oversee the matching process. For example,            a school may hire a contractor that is located in proximity to the UI            agency to act as the school's representative in directly overseeing            the match. Additional compliance guidance can be obtained from the Department's            Family Policy Compliance Office, the office that administers FERPA.            (Contact information for the office is provided at the end of this document.)

Additionally, educational agencies and institutions may disclose information            from a student's education records, such as the student's social security            number, if the student is an "eligible student" and has provided            prior, written consent for the disclosure. (An "eligible student"            is defined in FERPA as a student who is either 18 years of age or older or who is attending a postsecondary institution at any age. At the            secondary level, consent must be obtained from the parent to disclose            information, unless the student is 18 years old or older. In the latter            case, the "eligible student" is the person from whom the agency            or institution seeks consent.) Thus, a State educational authority-such            as a community college commission-may disclose student social security            numbers to a State UI agency (or other agency that has access to State            UI wage records) for the purpose of determining employment status if            the eligible students in question have provided consent for the disclosure            by the State educational authority to the outside entity. This written            consent must be signed and dated by the eligible student and 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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See 34 CFR § 99.30(b). Requesting student consent for this disclosure,            for example, may be made a regular part of the intake or admission process            for vocational and adult education programs. The Department's Family            Policy Compliance Office is available to assist with the development            of consent forms.

FERPA also requires that educational agencies and institutions make            a record of the disclosure of information from a student's education            records-unless the disclosure was made with the consent of the parent            or eligible student. This requirement is found in 34 CFR § 99.32.            Therefore, if a postsecondary institution discloses information from            a student's education record to a State educational authority specifically            for program evaluation purposes under Perkins III or AEFLA, the institution            is required to record in each student's education records the party            or parties to whom the information was disclosed and the legitimate            interest the party or parties had in obtaining the information.

The Department recognizes that parties have reasonably relied upon            the guidance issued on January 18, 2001. Therefore, the Department has            delayed the effective date of the guidance set forth in this memorandum            until April 30, 2003. Parties may, therefore, continue to rely on the            prior guidance until that date.

The Department's Family Policy Compliance Office is available to provide            technical assistance to States in applying the guidance provided herein.            The address and telephone number for the Family Policy Compliance Office            are as follows:

| | Family Policy Compliance Office
                U.S. Department of Education
                400 Maryland Avenue, SW
                Washington, D.C. 20202-4605
              Telephone number: (202) 260-3887
                Fax number: (202) 260-9001
                E-mail address: FERPA@ed.gov
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|Last Modified: 09/15/2004
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