Parent’s Record Request? Consider FERPA and FOIA

Imagine this: A parent submits a request for their student’s records and all internal staff emails that include the parent’s or student’s name. What do you do? Responding to this cumbersome request requires school officials to comply with both the Family Educational Rights and Privacy Act (FERPA) and the Freedom of Information Act (FOIA).

FERPA First

FERPA is a federal law that protects the privacy of student education records. FERPA applies to all schools that receive federal funding and grants parents and eligible students (i.e., students over age 18 or emancipated minors) the right to inspect, review, and request amendments to education records.

To respond to a parent’s request for their student’s records, school officials must determine which documents are responsive to the parent’s request and then determine which of those documents constitute “education records.” FERPA defines education records as records that are: (1) directly related to a student; and (2) maintained by an educational agency or institution, or by a party acting for the agency or institution.

Once school officials have determined what constitutes the student’s education records and have removed or redacted any exempt records, the remaining records must be disclosed to the parent or eligible student. Importantly, FERPA generally only requires that parents or eligible students have access to the records; FERPA typically does not give parents the right to receive copies of records.

Although FERPA requires that public schools comply with a request by a parent or eligible student for access to education records within a reasonable period (but not more than 45 days after receipt of the request), the Revised School Code requires that schools provide access within 30 school days.

Next, Consider FOIA

To the extent a parent’s records request encompasses more than their student’s education records or the parent is requesting copies of the records (instead of simple access), school officials must process the request under FOIA. Access to public records under FOIA is construed broadly, while exemptions are construed narrowly. FOIA nevertheless allows, and sometimes requires, redaction or removal of certain information. If challenged, the public body must prove the legal basis for the redaction or removal, which can be difficult due to FOIA’s pro-disclosure presumption.

School officials must respond to the FOIA portion of the parent’s request within five business days after the request is “received” by: (1) granting the request; (2) issuing a written notice to the requester denying the request; (3) granting the request in part and issuing a written notice to the requester denying the request in part; or (4) issuing a 10 business day extension by which to respond to the request.

The school’s response to the parent’s FOIA request may include an assessment of fees for responding and a notice that the school requires a “good-faith deposit” from the requester before providing the records. A school may charge a fee only if its FOIA procedures and guidelines (including the itemized fee form) are posted on the school’s website.

For any FOIA request, a careful FOIA analysis, including possible application of FOIA exemptions, should be conducted. A thorough analysis of FOIA and its exemptions was discussed in the October 2022 edition of School Law Notes.

If your school receives a request for records that implicates both FERPA and FOIA, start by delineating those records that may or must be disclosed under each statute. If you have questions, contact your Thrun attorney to assist with your response.