Section 511 IAC 7-38-1 - Access to and disclosure of educational recordsAuthority: IC 20-19-2-8; IC 20-19-2-16
Affected: IC 20-19-2; IC 20-33-7-3; IC 20-35
Sec. 1.
(a) The public agency must annually notify, in writing, parents of students currently in attendance, or students of legal age currently in attendance, of their rights regarding confidentiality of personally identifiable information. The notice must inform parents or students of legal age that they have the right to the following: (1) Inspect and review the student's educational record with respect to the: (A) identification, evaluation, and educational placement of the student; and(B) provision of a free appropriate public education to the student.(2) Seek amendment of the student's educational record that the parent or student of legal age believes to be: (C) otherwise in violation of the student's privacy rights.(3) Consent to disclosures of personally identifiable information contained in the student's educational record, except to the extent that this rule authorizes disclosure without consent.(4) File a complaint concerning the public agency's alleged failure to comply with the requirements of this rule.(b) The written notice must include the following: (1) The procedures for the following: (A) Exercising the right to inspect and review educational records.(B) Requesting an amendment of educational records.(2) The criteria for determining: (A) who constitutes a public agency official; and(B) what constitutes a legitimate educational interest, if the public agency has a policy of disclosing educational records to other public agency officials who have been determined to have a legitimate educational interest.(c) The public agency: (1) may provide the written notice by any means reasonably likely to inform the parents or students of legal age of their rights; and(2) must effectively notify: (A) parents of students with disabilities;(B) students of legal age with disabilities; or(C) parents who have a primary or home language other than English.(d) The right to inspect and review educational records includes the right to: (1) a response from the public agency to reasonable requests for explanations and interpretations of the educational record;(2) have other arrangements made to inspect and review a requested educational record or to receive copies of the educational record from the public agency if the failure to provide those copies would prevent the parent or student of legal age from exercising the right to inspect and review the educational record;(3) have a representative of the parent or student of legal age inspect and review the educational record; and(4) receive a copy of the student's educational record from the public agency for use in a pending due process hearing.(e) A public agency must permit the parent, or parent's representative, to inspect and review any educational record of the parent's children from birth to eighteen (18) years of age that are collected, maintained, or used by the public agency as described in this rule. All rights under this rule transfer from the parent to the student of legal age, as defined in 511 IAC 7-32-91, when the student has reached eighteen (18) years of age and not had a guardian appointed.(f) The public agency must permit a custodial and noncustodial parent to inspect and review the student's educational record unless the public agency has received actual written notice that a court order has terminated or restricted the parent's authority to access the student's educational record under applicable state law governing matters, such as, but not limited to, the following: (g) The public agency must comply with a request from a parent or student of legal age to inspect and review the educational record: (1) without unnecessary delay;(2) before any meeting regarding: (B) an interim alternative educational setting; or(C) a manifestation determination;(3) prior to: (A) a resolution session;(B) a due process hearing; or(C) an expedited due process hearing; and(4) in no case more than forty-five (45) calendar days after the request is made.(h) The public agency may charge a fee for copies of educational records, unless the requested record is a copy of a student's educational evaluation report or IEP, which must be provided at no cost to a parent or student of legal age, including a parent of a student or student of legal age who attends a nonpublic school. Fees for copies must not: (1) exceed actual cost of duplication; or(2) be charged if doing so effectively prevents the parent or student of legal age from exercising the right to inspect and review the educational record. The public agency may not charge a fee to search for or to retrieve information under this rule.
(i) If an educational record includes information on more than one (1) student, the parent or student of legal age has the right to: (1) inspect and review only the information relating to the parent's child or student of legal age; or(2) be informed of that specific information.(j) The public agency must maintain a record of each request for access to and disclosure of personally identifiable information from the educational record of each student, except when the disclosure has been by or to any of the following: (1) A parent or student of legal age.(2) A party with written consent from the parent or student of legal age.(3) A party seeking directory information.(4) An authorized public agency official.(5) A party receiving the record pursuant to a lawfully issued subpoena or other court order specifically stating that the following will not be disclosed: (A) The existence and contents of the subpoena or other court order.(B) The information furnished in response to the subpoena or other court order.(k) The record of access and disclosure must: (1) be maintained with the educational record as long as the educational record is maintained; and(2) include: (A) the name of the person who has requested or received personally identifiable information from the educational record;(B) the purpose of the party in requesting or obtaining the information; and(C) the date of disclosure of the information.(l) If the public agency discloses personally identifiable information with the understanding that the party receiving the information may make further disclosures on behalf of the public agency in which prior consent is not required, the record of disclosure must include the following: (1) The names of the additional parties to which the receiving party may disclose the information on behalf of the public agency.(2) The purpose of each of the additional parties in requesting or obtaining the information.(m) The public agency, upon request of a parent or student of legal age, must provide a list of the types and locations of educational record: (3) used; by the public agency.
(n) If a student transfers from one (1) school to another, the public agency's transmission of any of the student's educational record must include the following: (1) The student's current IEP.(2) Any disciplinary records relative to a suspension or an expulsion.(o) When the public agency reports a crime committed by a student with a disability, the public agency must ensure that copies of the education and disciplinary record of the student are transmitted only to the extent the transmission is permitted by the Family Educational Rights and Privacy Act (which includes requiring the receiving authorities to certify in writing that the records will not be disclosed to any other parties) and as required by IC 20-33-7-3, without the prior written consent of the parent or the student of legal age for consideration by the appropriate authorities to whom it reports the crime.(p) Except as specified in subsection (o), (q), or (r), written and dated consent of the parent or student of legal age must be obtained before personally identifiable information is disclosed to anyone other than the parent, student of legal age, or authorized public agency officials, or before the information is used for any purpose other than those specified in this rule. The consent must specify the following: (1) The record that may be disclosed.(2) The purpose of the disclosure.(3) The person or class of persons to whom the record may be disclosed.(q) Parental consent is not required before personally identifiable information is released to officials of other agencies or institutions for purposes of meeting a requirement of this article, except as follows: (1) Parental consent, or the consent of a student of legal age, as defined in 511 IAC 7-32-17, must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services in accordance with 511 IAC 7-43-3.(2) If a student is enrolled or is going to enroll in a nonpublic school that is not located in the student's school district of legal settlement, parental consent must be obtained before any personally identifiable information about the student is released between officials from the: (A) public agency where the nonpublic school is located; and(B) school district of legal settlement.(r) The public agency may allow access to, or disclose information from, an educational record without consent of the parent or student of legal age under any of the following conditions: (1) The disclosure is to authorized public agency officials within the agency, including teachers, whom the agency has determined to have legitimate educational interests.(2) The disclosure is to officials of another public agency or institution of postsecondary education where the student is enrolled, or intends to enroll, subject to the following: (A) The public agency must make a reasonable attempt to notify the parent or student of legal age at the last known address of the parent or student of legal age, unless the: (i) disclosure is initiated by the parent or student of legal age; or(ii) annual notice in subsection (a) includes notice that the agency forwards educational records to another public agency or institution that has requested the records and in which the student intends to or has enrolled.(B) The public agency must provide the following: (i) Upon request of the parent or student of legal age, a copy of the disclosed record.(ii) At the request of a parent or student of legal age, the opportunity for a hearing as described in section 2(c) of this rule.
(C) Notwithstanding clause (A), an Indiana public agency where the student was previously enrolled must take reasonable steps to promptly respond to a request from the student's new school, public or nonpublic, for the student's educational records.(3) The disclosure is to authorized representatives of: (A) the Comptroller General or Attorney General of the United States;(B) the Secretary of the United States Department of Education; or(C) state and local education authorities; in connection with an audit, evaluation, or accreditation of federal or state supported education programs, or for the enforcement of, or compliance with, federal or state legal requirements related to those programs.
(4) The disclosure is in connection with financial aid for which the student applied or which the student has received, if the information is necessary for such purposes as: (A) determining: (i) eligibility for financial aid;(ii) the amount of financial aid; or(iii) the conditions for the financial aid; or(B) enforcing the terms and conditions of the financial aid. For purposes of this section "financial aid" means a payment of funds provided to an individual or a payment in kind of tangible or intangible property to the individual that is conditioned on the individual's attendance at an educational agency or institution.
(5) The disclosure is to a state or local juvenile justice agency for the purposes set forth in IC 20-33-7-3.(6) The disclosure is to an organization, such as federal, state, or local agencies or independent organizations conducting a study for or on behalf of federal or state education agencies or institutions for any of the purposes listed in this subsection, providing the organization protects the confidentiality of the educational record and destroys all copies in its possession when the record is no longer needed for the purpose for which the study was conducted. Acceptable purposes of studies under this subsection are: (A) developing, validating, or administering predictive tests;(B) administering student aid programs; or(C) improving instruction.(7) The disclosure is necessary to comply with a judicial order or lawfully issued administrative or judicial subpoena, provided the public agency makes a reasonable effort to notify the parent or the student of legal age of the order or subpoena in advance of the disclosure, so that the parent or student of legal age may seek protective action, unless the disclosure is in compliance with: (A) a federal grand jury subpoena and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; or(B) any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed.(8) The disclosure is to the court where the public agency has initiated legal action against the parent or student. The disclosure of a student's educational records relevant to the public agency's legal action may occur without a court order or subpoena, but the public agency must take steps to seal the record in the legal action.(9) The disclosure is to the court when a parent or student of legal age initiates legal action against a public agency. Disclosure of a student's educational records relevant for the public agency to defend itself may occur without a court order or subpoena.(10) The disclosure is to appropriate parties in a health or safety emergency if knowledge of the information is necessary to protect the health and safety of the student or other individuals. Nothing in this rule prevents a public agency from: (A) including in the educational record of a student appropriate information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of: (iii) other members of the school community; or(B) disclosing appropriate information maintained: (i) in clause (A) to teachers and school officials within the public agency who the public agency has determined have legitimate educational interests in the behavior of the student; or(ii) under clause (A) to teachers and school officials in other schools who have been determined to have legitimate educational interests in the behavior of the student.(11) The disclosure is information the public agency has designated as directory information if the public agency has given public notice to parents of students in attendance and students of legal age in attendance at the public agency: (A) of the types of personally identifiable information that the agency has designated as directory information;(B) that a parent or student of legal age has the right to refuse to let the public agency designate any or all of those types of information about the student as directory information; and(C) of the period of time in which a parent or student of legal age has to notify the public agency in writing that he or she does not want any or all of those types of information about the student designated as directory information. A public agency may disclose directory information about former students without meeting the conditions set forth in this subdivision.
(12) The disclosure is to any of the following: (A) The parent of a dependent student as defined under Section 152 of the Internal Revenue Code of 1986.(B) Accrediting organizations to carry out their accrediting functions.(C) The parent of a student or to the student of legal age.(s) The public agency must, upon request, provide the parent or student of legal age with a copy of the information that has been disclosed.(t) The public agency may disclose personally identifiable information from an educational record only on the condition that the party to whom the information is disclosed will not redisclose the information to any other party without the prior consent of the parent or student of legal age, except for disclosures: (1) of directory information;(2) to the parent or student of legal age; or(3) made pursuant to: (B) lawfully issued subpoenas.(u) The public agency must not permit a third party access to personally identifiable information from an educational record for at least five (5) years, if the Family Policy Compliance Office, United States Department of Education determines that the third party improperly redisclosed personally identifiable information from educational record.(v) In the event that a parent refuses to provide consent under this section, the public agency may initiate the due process procedures stated in 511 IAC 7-45. Indiana State Board of Education; 511 IAC 7-38-1; filed Jul 14, 2008, 1:24 p.m.: 20080813-IR-511080112FRAReadopted filed 11/6/2014, 3:23 p.m.: 20141203-IR-511140382RFA