Welcome to the FERPA section of our webpage. This front page will reflect our most current information on federal student records law affecting educational institutions.
NACUANOTE: FERPA v. Public Record Laws, June 6, 2016
October 2, 2015 Letter from NACUA on the Draft DCL below dated August 18, 2015. While NACUA does not ordinarily make comments to proposed DCLs, since the draft DCL potentially affected the perception of how attorneys could interact with their clients on campus, NACUA make a number of important suggested clarifications.
See the DOE blog post on this letter seeking comment on what is intended to be a draft and is not an operative document, as the Department realized this was a complex area of the law. Anyone is free to submit comments, particulary with respect to whether there are any unintended consequnencs.
The fact situation in this case arguably involved a request for a litigation hold on records from the plaintiff and her attorney in a Title IX case. The fact situation is disputed, and media reports have in some instances made it difficult to understand the context in which this issue arose. To make it more confusing, it involves the interplay of HIPAA, FERPA and treatment records, with an overlay of Title IX and also a mix of state law. While the context is litigation, there is a chance for misunderstanding as to the breadth of the DCL and how it might be interpreted to a non-litigation situation with respect to what role lawyers should or should not play in interacting with their clients.
NACUA will be responding to the request for comments. To those who are confused by reading media reports, here is the pargragraph filed by the University of Oregon in response to the allegation the records were wrongfully obtained:
Answering paragraph 45, defendants deny that there was a "release" of a file because the records are Oregon's records, and Oregon has not released such records to anyone outside of Oregon, or anyone within Oregon, who does not have a lawful basis to receive the records. Defendants deny the allegation that "counsel for plaintiff told [Oregon] officials and attorneys that [p]laintiff did not authorize the release of her privileged counseling file and instructed that the school administration and attorneys were not permitted to obtain those records." Defendants further deny that any such instruction would in any event preclude defendants' attorneys from obtaining records necessary to do their jobs. Further, plaintiff's attorney asserted, before records were transferred to the office for Oregon counsel, that the records included information relevant to plaintiff's claims and that plaintiff's counsel wanted copies of such records. Oregon further states that there are multiple legal bases for Oregon to collect and review plaintiff's counseling records including but not limited to the following. First, counseling records maintained by a University Counseling and Testing Center are governed by the Family Educational Rights and Privacy Act, which allows Oregon to provide the records to its attorneys. In addition, the applicable Oregon Tort Claims Act allows a public body to collect, review, and investigate all relevant documents and facts after it receives notice of a plaintiff's intent to sue it.6 Further, under Oregon law, a plaintiff who places her psychological state at issue by seeking damages for emotional distress waives any psychotherapist/patient privilege or doctor/patient privilege and is required to disclose counseling records related to her psychological state. Defendants also deny the implication that information related to plaintiff's counseling is not relevant. The counseling records may have information tending to confirm or rebut her allegations and, under Oregon law, Oregon is entitled to review them. Finally, although Oregon may lawfully review its records about plaintiff for the reasons stated above, Oregon has not done so. Rather, Oregon's counsel simply had the records gathered pursuant to plaintiff's Tort Claim Notice and because plaintiff's counsel had requested a copy of the records be sent to them. Accordingly, defendants deny the false allegations alleged in Paragraph 45 of plaintiff's complaint.
DCL ID: GEN-15-18 Protecting Student Information, dated July 29, 2015. A reminder that despite all the federal government privacy breaches, schools remain on the hook for protecting student records, especially financial aid information, including for any third party servicers under contract with the school.