Department of Ed FERPA Enforcement FOIA Request

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Background

On April 15, 2014, EPIC filed a Freedom of Information Act ("FOIA") request with the Department of Education for records concerning investigations into alleged violations of the Family Educational Rights and Privacy Act ("FERPA"). The Education Department administers FERPA, a federal student privacy law applicable to educational agencies and institutions receiving federal funds to administer Department programs. Subject to certain exceptions, FERPA grants students the right to prohibit disclosure of their education records. FERPA also grants students due process rights, like the right to access their education records and the right to amend or delete certain data within a student's education record.

In 2008 and 2011, the Education Department issued Final Rules amending key FERPA provisions. The 2008 and 2011 regulations expanded the narrow exceptions under which educational agencies and institutions could disclose student information without first obtaining written student consent. For example, pursuant to the 2008 regulations, schools may disclose education records to a "contractor, consultant, volunteer, or other party" performing "an institutional service or function for which the agency or institution would otherwise use employees." These outside contractors and consultants must be under the "direct control" of the school. The 2011 regulations further expanded the circumstances under which schools may disclose education records without obtaining student written consent. In 2012, EPIC sued the Education Department for promulgating the 2011 regulations and changing FERPA without Congressional authorization. The Court ruled on procedural grounds, and therefore did not determine whether the Education Department had the legal authority to amend FERPA in the manner that it did.

The Education Secretary has designated the Education Department's Family Policy Compliance Office ("FPCO") to "investigate, process, and review complaints and violations under [FERPA]." The FCPO may investigate complaints that parents or students file, or alternatively, the FCPO may conduct "its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with [FERPA]."

EPIC's Freedom of Information Act Request

On April 15, 2014, EPIC submitted a Freedom of Information Act Request for:
  • 1. All FERPA complaints that the FCPO has received since January 8, 2009, the date the 2008 regulations went into effect;
  • 2. All records detailing the number of investigations the FCPO initiated in response to complaints since January 8, 2009, as well as investigations the FCPO has initiated own its own since January 8, 2009; and
  • 3. All records related to completed investigations since January 8, 2009.

Freedom of Information Act Documents

The documents reveal that schools and districts have disclosed students' personal records without consent, possibly in violation of the Family Educational Rights and Privacy Act. The documents also reveal that the Department failed to investigate many FERPA complaints.

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