From: Freeman, Robert (DOS)
Sent: Thursday, July 30, 2009 4:25 PM
Subject: records access
As indicated in the phone message left for you, I have received your inquiry. You wrote that the
Richfield Springs School received a request for records (“IEP’s, psych assessments, etc.”) from the psychology department at a local hospital pertaining to two former students.
In this regard, most relevant in my view is the federal Family Educational Rights and Privacy Act
(“FERPA”; 20 USC §1232g). FERPA applies to any educational agency or institution that participates in any federal funding or loan program. That being so, it includes virtually every public school and public college or university, as well as numerous private colleges and universities, within its coverage. In brief, FERPA grants access to records identifiable to a particular student to the parent of a minor student, and the student acquires the rights of his/her parent upon reaching the age of 18 years. Concurrently, FERPA forbids the disclosure of records that are personally identifiable to a student to a third party, unless a parent of a minor student or a student who has reached the age of majority consents to disclosure. Therefore, without consent given by the students, I do not believe that the School has the authority to disclose to the hospital, except in the circumstance described below.
Specifically, the federal regulations promulgated pursuant to FERPA make reference to situations in which there is no obligation to receive consent to disclose (34 CFR §99.31). One of those situations, subdivision (10), involves a disclosure made “in connection with a health or safety emergency, under the conditions described in §99.36.” That latter provision permits disclosure “to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.”
In sum, unless the disclosure of the records that you described relates to a health or safety emergency, I do not believe that the School may disclose them without the consent of the subjects of those records.
I hope that I have been of assistance.
Robert J. Freeman, Executive Director
Committee on Open Government
Department of State
One Commerce Plaza, Suite 650
99 Washington Avenue
Albany, NY 12231