When enacting the Family Educational Rights and Privacy Act (FERPA) Congress clearly indicated a strong preference for a school to obtain the prior written consent of a student (parent in the K-12 setting) before disclosing or granting access to anyone to FERPA-protected student information. At the same time, Congress recognized that the operational needs of an educational institution (not a system) make obtaining prior consent in every instance impractical and/or unreasonable.  

 

In order to meet the operational needs of a college, and without prejudicing a student, Congress included a limited number of provisions that authorize the disclosure of/access to FERPA protected information without a student's prior written consent. These provisions are to be read narrowly; that is, disclosure/access is not permitted, unless a provision of FERPA clearly states a permissible ground to disclose/provide access to protected information without a student's prior consent. Any doubts are to be resolved against permitting disclosure/access.

 

Another significant nonconsensual disclosure provision of FERPA relates to "lawfully issued subpoenas and court orders," which involves one (1) of the very few mandatory disclosures under FERPA.

 

FERPA generally provides that personally identifiable student information may be disclosed without a student's prior written consent if the disclosure is pursuant to a lawfully issued subpoena or court order, but only normallyafter proper notice has been provided to the student by the college regarding the receipt of the subpoena/courtorder and the college's intent to comply with it.

 

Generally speaking, to be a lawfully issued subpoena or court order, the subpoena or court order must be in the proper form with required content and be issued in Connecticut pertaining to a Connecticut lawsuit or other matter. Often colleges receive a subpoena relating to a matter out of state. In most cases, such subpoenas are not lawfully issued as the power and authority of a state court ends at the boundaries of the state. For example, a subpoena from a Florida state court is not valid in Connecticut as Florida state courts have no authority outside the State of Florida.

 

Normally subpoenas pertaining to matters being heard in federal courts are a different matter as federal courts have authority throughout the United States. Nonetheless, there are requirements in terms of form and service of process that must be considered in determining whether the subpoena is lawfully issued.

 

Whether dealing with a state or a federal court subpoena, obtaining competent legal advice regarding the validity of the subpoena is crucially important.

 

In addition to the requirement that the subpoena or court order be lawfully issued, a college must give "reasonable notice" to the student whose records are the subject of the subpoena or court order. The purpose of the notice is not only to inform the student of the existence of the subpoena or court order and the anticipated disclosure of records, but also to give the student the opportunity, if the student desires,to seek to have a court order the quashing (dismissal) of the subpoena or order. "Reasonable notice" is generally considered to be written notice by both first class and certified mail to the last known address of the student providing at least fourteen (14) calendar notice before the records are sent to the party who issued the subpoena.

 

A difficult aspect of complying withsuch subpoenas and court orders is the practice by many lawyers to describe the records that are sought as "all education records on file at the college." Under FERPA, that involves all record pertaining to a student at the college, including admission related materials, financial aid, counseling, registration, immunization, exams from all courses, quizzes from all courses, telephone message slips in all offices, conduct records, athletic records, student activities records, etc., etc., which are maintained in a number of offices at the college and which takes considerable time and effort to gather. FERPA's understanding of "all education records on file at the college" is often broader than that possessed by the issuing party. In addition, often a subpoena or court order demands production of the records with the personal appearance of a specified college employee at a designated place and time within a short period of time after issuance of the subpoena/court order complicating the issue. Of course, failure to comply with a lawfully issued subpoena or court order may result in the college and/or college employees being held in contempt of court.

 

Practice Pointer: Any subpoena or court order received by any college employee should be immediately referred to the college's registrar as the official custodian of college records to assess whether it is lawfully issued. Normally college registrars have substantial experience with such matters and know who to consult for proper advice and assistanceabout how best to respond.

 

Comments, suggestions, are invited and should be forwarded to Tom Clark, Academic and Student Affairs Associate.