FOIA Requests for Student Directory Information

Recently, many school districts received Freedom of Information Act (FOIA) requests from a for-profit business seeking the disclosure of student directory information. Responding to FOIA requests for student directory information requires school officials to navigate legal requirements that include the Family Educational Rights and Privacy Act (FERPA) and other Michigan privacy statutes. This article describes considerations and FOIA exemptions that apply to such requests.

Directory Information and FERPA

Student directory information is defined in the FERPA regulations and Revised School Code (RSC) Section 1136 as information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if dis­closed. Examples of directory information include the student's name, address, telephone number, or email address. A student’s social security number may not be designated as directory information. Likewise, a student ID number, user ID, or another unique identifier may only be designated as directory infor­mation if additional factors other than the identifier are required to authenticate the student's identity (e.g., a password or PIN).

FERPA generally allows a school to disclose a student’s directory information without prior written consent if the school gives public notice of the: (1) information designated as directory information, (2) parent or eligible student's right to restrict the disclosure of such information, and (3) “opt-out” period within which parents or eligible students must notify the school in writing that they do not want their directory information disclosed. Schools typically designate directory information by board policy and in an annual directory information designation notice.

If a FOIA request seeks the disclosure of personally identifiable student information from education records, school officials first must consult their board policies and directory information designation notice to determine whether the requested information has been designated as directory information, allowing for non-consensual disclosure. If the requested information has not been designated as directory information, non-consensual disclosure is generally prohibited. School officials must also ensure that non-consensual disclosure of directory information does not occur as to students for whom an opt-out form has been completed.

Applicable FOIA Exemptions

FOIA Section 13(2) requires schools to exempt from disclosure student directory information requested for surveys, marketing, or solicitation, unless the school determines that the use of the directory information is consistent with the school’s educational mission and beneficial to the affected students. If a school determines to disclose the requested directory information, the school may require that requesters execute an affidavit confirming that they will not use, rent, or sell the directory information for surveys, marketing, or solicitation.

Other Statutory Exemptions to Disclosure

FOIA Section 13(1)(d) allows a school to exempt from disclosure information specifically described and exempted from disclosure by statute. School officials should consider the following statutory exemptions when a FOIA request seeks the disclosure of directory information:

• RSC Section 1136. Subject to prescribed excep­tions, RSC Section 1136 prohibits non-consensual disclosure by schools of any personally identifiable student information, including student directory information, to a for-profit business entity. Accordingly, any FOIA request for student directory information from a for-profit business entity typically must be denied.
• RSC Section 1137a. RSC Section 1137a prohib­its a school from disclosing information to a student’s parent who is prohibited by a personal protection order (PPO) from having access to information in records concerning the student. For this prohibition to apply, the school must have received a copy of the PPO.
• Michigan Address Confidentiality Program Act (ACPA). The ACPA, which protects victims of certain crimes from their attackers, prohibits a school from disclosing a student’s confidential address if the student or the student’s parent or guardian has obtained and provided notice to the school of a participation card issued by the Michigan Attorney General.

Responding to a FOIA Request for Student Directory Information

School officials may generally respond to a FOIA request for student directory information as follows:

First, if school officials determine that the requester is a for-profit business, the request typically must be denied under RSC Section 1136.

Second, if school officials determine that the requester is not a for-profit business and the intended use of the student directory information is consistent with the school’s educational mission and is beneficial to the affected students, school officials may grant the request, or grant the request in part if students have opted-out, provided notice of an ACPA participation card, provided a copy of a relevant PPO, or provided other statutory grounds for non-disclosure.

Third, if school officials make the determination described above to provide directory information to a requester that is not a for-profit business, school officials may require, before disclosing the directory information, that the requester returns a signed affidavit that the requester will not use, rent, or sell the directory information for surveys, marketing, or solicitation.

Fourth, school officials should deny a request for directory information if they determine that the intended use of the student directory information is inconsistent with the school’s educational mission or is not beneficial to the affected students.

Because student directory information is often protected from disclosure by state and federal law, FOIA requests for such information can be more complicated than they might first appear. School officials may wish to contact legal counsel for guidance before responding to such requests.