USA PATRIOT ACT Results in Amendments to FERPA; NASFAA Training Materials Updated

The Department of Education's Family Policy Compliance Office recently issued Guidance on FERPA and Anti-Terrorism Activities. In addition to explaining how existing FERPA requirements apply in the context of anti-terrorism activities, the guidance also introduces several significant changes to FERPA that were effective on October 26, 2001, when the USA PATRIOT ACT of 2001 was signed into law.

[See below for links to FERPA Spring Training module pages updated as a result of the Act.]

What Has Changed

Effective October 26, 2001, institutions are permitted to disclose – without the consent or knowledge of the student or parent – personally identifiable information from the student's education records to representatives of the Attorney General of the United States in response to an ex parte order in connection with the investigation or prosecution of terrorism crimes. An ex parte order is an order issued by a court without notice to an adverse party.

In addition, when the school makes a disclosure pursuant to an ex parte order, the school official is not required to record that disclosure of information in the student's file.

Before October 26, 2001, personally identifiably information could be released to representatives of the Attorney General without the consent or knowledge of the student or parent only in connection with an audit or evaluation of federal- or state-supported education programs, or for the enforcement of or compliance with federal legal requirements for such programs. Some examples of federal- or state-supported education programs are the Americans with Disabilities Act, the Equal Educational Opportunities Act of 1974, Title IX of the Education Amendments of 1972, Title IV of the Civil Rights Act of 1964, or the Civil Rights of Institutionalized Persons Act (CRIPA). These disclosures to the Attorney General in connection with federal- or state-supported education programs continue to be permitted and must be recorded by the institution in the student's file.

Representatives of the Attorney General

Authorized representatives of the Attorney General include any employee of the Department of Justice, including the Federal Bureau of Investigation.

Required Versus Optional

Careful readers of ED's "Guidance on FERPA and Anti-Terrorism Activities" and the USA PATRIOT ACT of 2001 will notice a significant discrepancy in the wording between the two documents. The "Guidance on FERPA and Anti-Terrorism Activities" states that institutions are permitted to disclose personally identifiable information to the Attorney General without the student's or parent's consent or knowledge in response to an ex parte order in connection with the investigation or prosecution of terrorism crimes, but the PATRIOT ACT states that institutions are required to make such disclosures.

This distinction is due to the overall permissive nature of FERPA. The only required disclosure under FERPA is to the parent or eligible student. For other specific disclosures (such as the new disclosures to the Attorney General), FERPA allows the disclosure, but there may be other laws (such as the PATRIOT ACT) that require schools to comply. The amendments to FERPA permitting the new disclosures to the Attorney General ensure that by complying with the PATRIOT ACT, schools are also in compliance with FERPA.

In addition to issuing this guidance, the Department of Education will be amending and updating the FERPA regulations.

Updated FERPA Spring Training Pages

FERPA was a NASFAA Spring Training topic for both 2001 and 2002. Updated pages of the Participant's Handout can be found on the new Training Updates and Errata page at http://www.nasfaa.org/LinkLists/TrainingUpdates.asp and in the following list. Both updated pages are in PDF format.