PUBLIC INFORMATION — The Student Press Law Center reports that the U.S. Department of Education, disregarding the protests of media and First Amendment groups, has published a final rule that would expand the definition of what constitutes a confidential "education record" under the privacy standards of the Federal Educational Rights and Privacy Act (FERPA).
DOE is making two related changes to FERPA that drew fire from open-government advocates. Under the new rule, an otherwise-public record will be considered confidential even if it contains no names, Social Security numbers or other individual identifiers, if the record is "linked or linkable to a specific student" so that a person could figure out the student's identity "with reasonable certainty," or if the educational institution reasonably believes that the requester already knows the identity of the student to whom the documents relates.
As published Dec. 9, the rule is broader than when it was circulated for public comment earlier this year. The initial draft said that redacted records would be confidential if a person's identity could be determined by people in the community. But the final regulation says that a redacted record is confidential if a person's identity could be determined by people in the school so that, in DOE's view, a record about an incident not well-known to the public but known to people within the school will become confidential.
In its Federal Register posting, the DOE said that its rules would prevent a school from confirming that an unnamed student was disciplined for bringing a gun to campus: "For example, it might be well known among students, teachers, administrators, parents, coaches, volunteers, or others at the local high school that a student was caught bringing a gun to class last month but generally unknown in the town where the school is located. In these circumstances, a school district may not disclose that a high school student was suspended for bringing a gun to class last month, even though a reasonable person in the community where the school is located would not be able to identify the student, because a reasonable person in the high school would be able to identify the student."
As published Dec. 9, the rule is broader than when it was circulated for public comment earlier this year. The initial draft said that redacted records would be confidential if a person's identity could be determined by people in the community. But the final regulation says that a redacted record is confidential if a person's identity could be determined by people in the school so that, in DOE's view, a record about an incident not well-known to the public but known to people within the school will become confidential.
In its Federal Register posting, the DOE said that its rules would prevent a school from confirming that an unnamed student was disciplined for bringing a gun to campus: "For example, it might be well known among students, teachers, administrators, parents, coaches, volunteers, or others at the local high school that a student was caught bringing a gun to class last month but generally unknown in the town where the school is located. In these circumstances, a school district may not disclose that a high school student was suspended for bringing a gun to class last month, even though a reasonable person in the community where the school is located would not be able to identify the student, because a reasonable person in the high school would be able to identify the student."
The final rule, due to take effect on January 9, discusses this situation under the heading of "targeted requests" and includes the following definition of the "personally identifiable information" about students that must not be disclosed:
The term includes, but is not limited to
(a) The students name;
(b) The name of the students parent or other family members;
(c) The address of the student or students family;
(d) A personal identifier, such as the students social security number, student number, or biometric record;
(e) Other indirect identifiers, such as the students date of birth, place of birth, and mothers maiden name;
(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or
(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.
(a) The students name;
(b) The name of the students parent or other family members;
(c) The address of the student or students family;
(d) A personal identifier, such as the students social security number, student number, or biometric record;
(e) Other indirect identifiers, such as the students date of birth, place of birth, and mothers maiden name;
(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or
(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.
(Emphasis added)
