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July 05, 2005

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I wonder how many parents are aware of FERPA and how many use their right? Is there any statistics?

1. Is an education record subject to disclosure under the California Public Rights Act? If so, under what circumstances would the education record not be released?

2. Under Education Code Section 49067 states that Education Code section 49067 prevails over CPRA, does that mean Education would trump CPRA and FERPA would then apply?

I am writing to gain the perspective of this group about a concern that I have with my county's library. My son (age 8) checked out books and did not return them for several months. The Fairfax County Public Library (VA) reported this information to a collection agency. He has since returned these books, but I am left with an uneasy feeling knowing his personal information is with a third party collection agency. Not only do I think that it is overkill (though our area is known for its transient nature), but I feel that my son, being a minor, should have more protection. At the very least, MY name should be given to a collection agency if necessary. I plan on writing a letter but I wanted to gain a more circumspect view of the situation before doing so. Thank you for your thoughts.

Hello,

A further clarification was requested from the Family Policy Compliance Office regarding whether school library records fall under FERPA's jurisdiction.

Begin quote:
"FERPA does not require that a school maintain particular education records. Rather, a school is required to provide to provide the privacy protections of FERPA to education records during whatever period of time the school chooses to maintain them. FERPA prohibits the destruction of education records while there is an outstanding inspection request from the parent to review those particular records. FERPA is otherwise silent concerning the destruction of education records.

Our response is not changed because the physical location of an education record does not affect its inclusion as an education record. As well, there is no FERPA concept of "permanent" record or "transient" record. (end quote)

While the response is not one that supports student privacy in my opinion, the question will not be settled until there is a decision by a court.

Helen

Hello,

This is the reply received from the Family Policy Compliance Office regarding whether school library records fall under FERPA's jurisdiction.

(Begin quote) "Are K-12 school library records, such as automated circulation records, considered "education records" under FERPA?"

This Office administers the Family Educational Rights and Privacy Act (FERPA).

FERPA contains a broad definition of the term "education records. It defines them as "those records, files, documents, and other materials which --

(i) contain information directly related to a student; and
(ii) are maintained by an educational agency or instituion or by a person acting for such agency or institution."

34 CFR Part 99.3. "Education records."

In the circumstances you describe, if the records are maintained by a public school or district, and are able to be identified by student, then we'd probably consider them to meet the qualification of FERPA as education records. (end quote)

The reply is not totally surprising. It would appear that the phrase "if the records are maintained" is an important one. School library circulation records are transient, not permanent. They exist while a student has an item checked out, and depending on the automation system and its configuration, may be retained for varying time periods. In some systems, the link between borrower and specific item is severed when the item is checked in. In others, the circulation record for the student may remain anywhere from one more circulation cycle of the item up to 25 circulation time for the item. It depends on how district personnel configure the automated circulation. However, the list of books checked out is NEVER part of a permanent record which would be placed in the student's physical education record folder not attached electronically to a computerized student record.

Even though an email answer was sent to my query, the question will not be settled until there is a decision by a court.

Helen

Nick,

Since information in library literature and other sources in unclear or contradictory, I am taking your advice and asking the Family Policy Complaince Office for their interpretation.

Since you seem to support the goal of protecting student privacy in school libraries, what tactic would you take to protect these student records?

While it is true that FERPA doesn't specifically mention library records, the idea that the law isn't clear is laughable. As cjovalle points out, the definition of "education records" under FERPA is very broad. Feel free to contact the U.S. Department of Education's Family Policy Compliance Office who will tell you that k-12 library records are considered "education records."

While the goal of protecting students' privacy is admirable for K-12 librarians, they won't find the support Helen is looking for in FERPA.

This is interesting- I've only heard FERPA interpretated in the broadest possible sense. FERPA mentions: records "directly related to a student; and maintained by an educational agency or institution or by a party
acting for the agency or institution" (numbers removed) in records which are "any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche." I assumed that a lack of explicit exclusion meant that they were included. Are there more sources available arguing different views? That would affect a great many of my assumptions about FERPA and its applications.

America's librarians: protecting schoolchildren from their taxpayer parents.

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