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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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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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