An Overview of the Right to Inspect Records Under FERPA

The Family Educational Rights and Privacy Act, 20 USC § 1232g; 34 CFR Part 99, otherwise known as “FERPA,” was enacted by Congress on August 21, 1974 and broadly concerns the various rights that students and parents have to inspect the student’s educational records, amend the educational records, and the ability of an educational institution or agency to disclose or withhold those records to third parties. FERPA applies to any educational institution or agency that receives any funds from the U.S. Department of Education and is enforced by the U.S. Department of Education’s Family Policy Compliance Office.   The scope of this article is focused only on the discussion of what rights exist for a parent or eligible student to inspect and review education records, as well as what limitations exist on those rights. 

FERPA itself is very far-reaching and pertains to any “educational record,” which is defined as a record that 1) directly related to a student; and 2) maintained by an educational institution or agency, or by a party acting on their behalf.   The first question facing any school, institution or related agency is:  when must these educational records be available for inspection?   The easy answer is that almost always there is a duty to provide the records for inspection and review.  34 CFR 99.10(a) provides that “a parent or eligible student must be given the opportunity to inspect and review the student’s education records.”  An “eligible student” is defined as one who is 18 years or older.   FERPA was created to provide parents with certain rights to inspect their child’s educational records, but once the child has reached the age of majority these rights automatically “transfer” from the parent to the eligible student. 

Once a request is made, 34 CFR 99.10(b) requires that the records be made available within no more than 45 days from the date the request was received by the agency or institution.  However, compliance with the Act does not stop there.   This disclosure requirement brings with it several additional mandates that institutions and/or agencies must be aware of and comply with accordingly.   First, not only must the records be made available, but the institution or agency is required to provide an explanation and interpretation of the records if so requested. See 34 CFR 99.10(c).  Secondly, the agency or institution must take all reasonable steps to ensure that the parent or eligible student actually has the ability or opportunity to review the records.  To that end, 34 CFR 99.10(d) mandates that if circumstances arise that prevent a parent or eligible student from exercising their right to inspect and review the records, the institution or agency shall provide a copy of the records to the requesting party and make arrangements to aid the parent or eligible student in their efforts to inspect and review the records.  A situation where this may apply would be one in which the parent or student has to travel a very far distance to view the records, and such a distance makes their ability to review the records at the facility nearly impossible. 

Clearly, whether the circumstance at issue rises to the level that would require such arrangements to be made is subjective and open to interpretation.  Thus, the cautious approach should be to have a process in place to provide copies of the educational records whenever requested and a means for them to be reviewed that works reasonably with the parent or eligible student’s schedule or particular situation.   Further, 34 CFR §99.11(a) allows for a fee for these copies to be charged, so long as the fee is not so burdensome that it would effectively thwart the parent or eligible student from being able to inspect and review the education records.  Lastly, one commonsense requirement of FERPA requires that if there is a pending or outstanding request for the records, the agency or institution shall not take any steps to destroy the records.  See 34 CFR 99.10(e).  

There are limitations on a parent or eligible student’s right to inspect the records under FERPA.  They can be categorized as statutory exceptions and definitional exceptions.  As far as specific statutory exceptions are concerned, an agency or institution need only make disclosure as to the specific information about the student in question.  24 CFR § 99.12(a) provides that if the records reflected pertain to multiple students, the disclosure is limited to the student at issue.

Further, if the educational institution is post-secondary, which is defined as a school that provides education beyond the 12th grade, they do not have to release records that are:  1) the financial information of the student’s parent(s); 2) confidential letters or confidential statements of recommendations placed in the records prior to January 1, 1975, “as long as the statements are used only for purposes for which they were actually intended;” or 3) confidential letters or confidential statements of recommendation that are in the student’s records post-January 1, 1975 if the student has waived their right to inspect such records, and those letters and statements relate to the student’s admission to an institution, application for a job, or receipt of an honor or recognition.  See CFR § 99.12(b).  Any waiver executed by the student must be in writing and signed by the student, regardless of whether the student is 18 or over, and must not be a condition for admission or the condition of some other benefit from the institution or agency.  See CFR § 99.12(c)(1).  The waiver can be revoked, but such revocation must be in writing.

A review of definitional exceptions is also particularly helpful when understanding what limitations apply to a parent or eligible student’s right to inspect and review their records.   First, remember that only “educational records” may be inspected.  This does not include records that are kept solely by the maker (i.e. teacher) of the record or those that are used only as a personal memory aid and are not accessible or shown to any other person other than a substitute.  Secondly, “educational records” do not include employment records of an individual employed by an institution or agency so long as they are business records which relate only to that persons capacity as employee and are not available for any other purpose.  Further, it does not include records made by a school or agency’s law enforcement division, or alumni records created or received by an institution or agency after the student has left the school and which are not directly related to the student’s attendance, as well as grades on peer-graded assignments before they are collected and recorded by a teacher.

Finally, educational records do not include “treatment records” which concern an eligible student or a student attending a postsecondary school.  Treatment records are defined as such records made or kept by a medical professional or paraprofessional (i.e. physician, psychologist, or psychiatrist) and made, maintained or used solely for the treatment of the student and are not disclosed to outside third parties.  Yet, there is an important paradox to note with regards to treatment records. While they are specifically excluded from FERPA, 34 CFR 99.10(f) allows the eligible student to request these records in order to have them reviewed by a physician or other treating professional. 

The rights of a parent or eligible student to inspect and review educational records are broad and inclusive of many records that are likely maintained by an educational institution or agency.  While there are limitations on the right to inspect, a violation of FERPA can be costly.  Although FERPA does not give an individual a cause of action under 42 U.S.C. § 1983 to enforce their rights to inspect, violations of the Act may result in all or part of federal funding being withheld or cut-off completely.  See Gonzaga University v. Doe, 536 U.S. 273 (2002).  Therefore, knowing and understanding the guidelines for inspection is vital to an institution or agency’s diligent compliance with the Act.