For additional information, please view our recent webinar on this topic. 20 U.S.C. § 1232g; 34 CFR Part 99 34 CFR § 99.3. In many cases, compliance with FERPA will satisfy privacy requirements under other statutes, such as the Health Insurance Portability and Accountability Act for protected health information (such as information collected through student health clinics) and the Gramm-Leach-Bliley Act for financial information (such as information collected for student loans).

Defining an "Education Record"While the Miller case was fascinating on many levels, its relevance for higher education institutions is the portion in which the Pennsylvania Supreme Court focused its discussion on whether the record sought was in fact an "education record" under FERPA, which is often a challenging definition for educational institutions to apply to their own records, particularly where there are few physical "records" or files at many institutions.Generally speaking, FERPA restricts the disclosure of such "personally identifiable education records," 20 U.S.C. § 1232g(b)(1), with only few exceptions. For example, if the information at issue is considered directory information or it is sought through a court order or subpoena, the consent requirements differ.

FERPA’s definition of exempted “education records” was broad, encompassing documents that “(i) contain information related directly to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” Id. at *3 (quoting 20 U.S.C. § 1232g(4)(A)(i-ii)). But consistent with several other cases, Magistrate Judge King concluded “student witness statements” and noneducational “incident reports” were not covered, finding that lawmakers were concerned with protecting the confidentiality of educational records rather than “information that could be used to prove claims of gender-based discrimination.”

These online learning resources not only allow teachers to hold classes through video conferencing but they also assist schools in maintaining social distancing guidelines. While implementing apps and new technologies could make schools more efficient, schools—especially those funded by Federal Funds—have to pay close attention to the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g).The educational landscape in the United States has been evolving for years as new technologies have been implemented into the daily lives of students and teachers. Fifteen years ago, it was rare to hear about students even having laptops.

Dist. v. Miller, 191 A.3d 75 (Pa. Cmmw. 2018). The Commonwealth Court holds that a school bus surveillance video that depicted a school teacher roughly disciplining a student was not an “education record” under the federal Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g because the video directly related to the teacher, not the students.Central Dauphin School District v. Hawkins, 2018 WL 6441638 (Pa. Commw. December 10, 2018). The Commonwealth Court holds that school bus surveillance video that recorded a confrontation between a student and a parent of another student was not an “educational record” of the student under FERPA because it was not directly related to the student or maintained by the DistrictSUMMARY AND FACTUAL BACKGROUND In each case, a requester submitted a request to a school district (“District”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.

Education records are:“those records, files, documents, and other materials which—contain information directly related to a student; andare maintained by an educational agency or institution or by a person acting for such agency or institution.”20 U.S.C. 1232g(a)(4)(A).Treatment records are defined as:“records on a student who is eighteen years of age or older, or is attending an institution of postsecondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student’s choice.”

Easton Area Sch. Dist. v. Miller, 232 A.3d 716 (Pa. 2020). Pennsylvania Supreme Court holds that images of students in a school bus surveillance video are “educational records” under FERPA and must be redacted before releasing the video in respond to a request for records under the RTKL.BACKGROUNDRequester submitted a request for records under the Pennsylvania Right-to-Know Law (“RTKL”) seeking a school bus surveillance video involving an elementary school teacher who, according to Requester, had roughly physically disciplined a child on a school bus outside of the school.The school district denied the request on the basis that the recording was an educational record of the disciplined child under the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, and that if a record is exempt from public disclosure pursuant to FERPA it is also exempt from public disclosure under the RTKL. 65 P.S. §§ 102, 305(a)(3).The Commonwealth Court, however, concluded that the video was not an “education record” of the student within the meaning of FERPA, because, even though it captured individually identifiable images of students, it was not “directly related” to the students who were portrayed.

FERPA rights transfer to the student when they reach the age of 18 or attends an institution of postsecondary education at any age (become an “eligible student”). 20 U.S.C. § 1232g(d); 34 C.F.R. § 99.5(a)(1).FERPA prohibits educational agencies (e.g., school districts) and institutions (i.e., schools) from disclosing personally identifiable information (PII) from students’ education record without the prior written consent of a parent or the eligible student, unless an exception to FERPA’s general consent rule applies.

FERPA rights transfer to the student when they reach the age of 18 or attends an institution of postsecondary education at any age (become an “eligible student”). 20 U.S.C. § 1232g(d); 34 C.F.R. § 99.5(a)(1). FERPA prohibits educational agencies (e.g., school districts) and institutions (i.e., schools) from disclosing personally identifiable information (PII) from students’ education record without the prior written consent of a parent or the eligible student, unless an exception to FERPA’s general consent rule applies.

Any records created by personnel on behalf of the IHE are likely to be "education records" within the meaning of the Family Educational Rights and Privacy Act (FERPA). 20 U.S.C. § 1232g(a)(4)(A); 34 C.F.R. § 99.3 (definition of "education records). Records created and maintained by a healthcare worker not acting for the school would not qualify as education records.4. Must Institutions Report a Threat of Exposure and, if So, What Should They Report?The CDC recommends, and the U.S. Department of Education endorses, sharing accurate information with staff, students and faculty about steps the IHE is taking to prevent and limit exposure risks.