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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA


AO-47-01

November 13, 2001

Ms. Diane McIntyre
Harrisonburg, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your letter of September 3, 2001.

Dear Ms. McIntyre:

You have asked two questions regarding your access to your son's public school records under the Virginia Freedom of Information Act (FOIA) and the federal Family Educational Rights and Privacy Act (FERPA). You stated that you requested to view your son's records and were told that you had to provide two business days' notice. You also stated that the school posted your son's name in its technology service database, which appeared on an Internet site accessible to the public and that you are concerned that the posting violated your son's privacy. Subsequent to several requests made by you for an explanation as to why the name appeared on the site, the school stated that this was required based on the specific nature of the technical service sought. Furthermore, the school disagreed with your assertion that such conduct was a FERPA violation, citing it as an isolated, incidental reference to his name, and classifying his name as "directory information." The school later attempted to remedy the problem by limiting access to employees only.

Your first question is whether a parent is required to give two business days' notice to view scholastic records under FOIA? Section 2.2-3700 of the Code of Virginia provides that FOIA generally ensures access to records in the custody of public officials. All public records... shall be presumed open, unless an exemption is properly invoked. Subdivision A. 3. of 2.2-3705 states that access [to scholastic records] shall not be denied to the person who is the subject thereof, or the parent or legal guardian of the student. To obtain the access as a parent, the ordinary procedures for requesting records should be followed. Subsection B of 2.2-3704 states that, upon request, the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, make... a response. Here, you have stated that the school has requested that you give them two business days' notice. As cited above, the statute requires the school to respond to your request within five business days. Since the two-day response time is within the five-day requirement, the school is in compliance with FOIA.

Your second question relates to the application of FERPA to the actions of the school. Please recognize that while I will discuss the issues, FERPA is not within the advisory jurisdiction of the Virginia Freedom of Information Advisory Council. Therefore, if you have further questions about the application of FERPA, I would suggest that you contact the Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, S.W., Washington, D.C. 20202-4605. That office may also be reached by phone at (202) 260-3887.

FERPA applies to all educational agencies or institutions that participate in grant programs administered by the United States Department of Education. The intended protection of FERPA is student privacy1. Like scholastic records under 2.2-3701 of FOIA, education records under FERPA are defined as records that contain information directly related to a student.

Generally, FERPA prohibits access to the education records of any student that contain personally identifiable information about that student, unless the parent of the student, or the student if over the age of 18, consents to the disclosure. FERPA does allow educational agencies or institutions to release "directory information" at their discretion. Directory information is information in an education record that a student generally would not consider harmful or an invasion of privacy upon disclosure. Specifically, FERPA defines "directory information" as "the student's name, address, telephone listing, date and place of birth, major field of study, degrees, awards received, and most recent previous educational agency or institution attended by the student." Releasing this "directory information" requires notice of which categories an agency or institution classifies as "directory information," notification to the parents, and a reasonable response period for parents to object to the disclosure. However, such a notice is not required if the information is only being disclosed within the school or school district.2 Your facts did not indicate whether notice was provided or to what extent.

After reviewing the facts you have presented, there are no apparent FOIA violations. While there do not appear to be any FERPA violations either, I suggest you contact the Family Policy Compliance Office for a formal opinion. Here the school listed your son's name on a website for the purposes of securing services for his computer. Upon your complaint, in an attempt to accommodate your concerns, the school prohibited access to the public. The school has complete autonomy in determining which, if any, of its records are made available online. There is no requirement to make an internal database available online regardless of whether directory information is included on the site.

In conclusion, while you are entitled to access your minor son's records, the school has five working days in which to provide you with access to the documents requested. The two-business day requirement is within the statutory deadlines set forth. In addition, with respect to your son's name appearing on a previously unrestricted website in connection with the technology services needed for his laptop, the school is not in violation of FERPA as a student's name is considered directory information that may be disclosed. There is a notice requirement but that was met once the access was restricted to members of the school system. There is also no entitlement for you to have access to the internal website, as the school does not have to make this record available online.

It is important to note that FOIA governs the access to "documents," not information. Thus, the school is not required to address your request for an explanation of a particular record. Furthermore, to the extent that the school does not already have a record explaining why particular information was posted on its website, FOIA does not require the public to create a record containing that information.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

1 20 USCS 1232g.

2 34 C.F.R.99.31(a)(1)

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