At KSB, we recommend sharing wings, pretzel bites, and queso with the table. We only share beer with those we love. We advise sharing students’ personally identifiable information (“PII”) with no one. But is there any time when PII is as shareable as cheese curds? You bet. Today’s post gives you a taste for a key ingredient of the Family Educational Rights and Privacy Act (“FERPA”) - the directory information exception.
While schools must obtain prior written consent from a parent before releasing most PII, directory information may be released without consent under certain conditions. The most important condition is that you have a policy outlining your approach to directory information. But we’re getting ahead of ourselves…
What is directory information?
The FERPA regulations define directory information as information contained in an education record that would not generally be considered harmful or an invasion of privacy if disclosed. If you’re anything like us, “would not generally be considered” are five of the worst words in the English language when federal funding is at stake. Unless the Department of Education wants administrators to be stingier with PII than Steve Williams is with his lava cake, let’s reduce the ambiguity please. Thankfully, the Department of Education is kind enough to specify the following PII as directory information:
Names
Addresses
Telephone listings
Email addresses
Photographs
Dates and places of birth
Major fields of study
Grade level
Enrollment status
Dates of attendance
Participation in officially recognized activities and sports
Weight and height of members of athletic teams
Degrees, honors, and awards received
The most recent educational agency or institution attended.
On the other hand, social security numbers are never directory information. Likewise, be cautious with student ID numbers. We recommend sticking to the list above. If you have a unique issue, it is best to discuss it with your school lawyer.
Let’s return to that important condition that must be met before you can release directory information without prior written consent…
When can you share directory information?
Remember when your mom made brownies, but you had to ask your dad if he wanted to keep them before bringing them to your friend’s party? That’s how we think of the directory information exception. The most important condition you must meet before sharing directory information is giving parents public notice of your policy on the disclosure of such information. Unless the student is 18, the parents own student PII. If dad wants to keep all 14 brownies home, they will never see the light of day. If mom or dad wants to keep the middle pieces, your friend Suzie can only have an overbaked corner and a chipped tooth.
It’s the same way with directory information. First, your policy must describe what types of PII you have designated as directory information. Next, the policy must state that parents can opt out of the disclosure of directory information. This part can be confusing. Parents have a right to opt out of disclosure of “any and all” directory information. Some schools choose to allow opt-outs from specific categories of directory information. For example, under the “buffet” approach mom and dad may allow you to share Billy’s name but not his address. Other schools take the position that if a parent opts out of any directory information, they are treated as having opted out of all of it. Still other schools have “opt in” procedures, rather than opt out procedures, which require the parents to consent in advance to sharing of any directory information. We strongly discourage our client schools from using an opt in system. It’s hard enough to keep track of who can be in what class photo when parents opt out. We don’t think you should make it even harder to take the football and volleyball team photos in August by having to wait until every parent signs a consent form.
For schools that allow parents to opt out of disclosure of directory information by category, note that there is an additional limit to a parent’s control. If a parent wants Henry’s name on the football roster, the honor roll, and in the yearbook without having to give prior written consent, then that parent must allow you to consider Henry’s name directory information. We like the all in or all out system rather than a piecemeal, but for schools who allow parents to opt out of certain categories, they cannot limit recipients within a category. A parent cannot opt out of only a single medium, such as the local paper with the pesky reporter who said number 12 threw a bad interception.
Finally, the policy must specify the period within which a parent has to notify you in writing that he or she does not want directory information about their student disclosed. Obviously this only applies to schools using an opt out system for directory information. In short, parents have the right to opt out of any PII being disclosed as directory information for their student. If they opt out, then you cannot release that directory information unless you have prior written consent from the parent.
Remembering the difference between Steve’s lava cake and shareable cheese curds.
Your instinct is to lock up your students’ PII and label it Fort Knox. That is not necessary with directory information. Whenever you have a question about releasing PII, ask yourself:
Is it considered by the Department of Education to be directory information?
Is it listed in your policy as directory information?
Have you distributed your policy to parents, clearly communicated the opportunity to opt out (or in…sigh…), and included the time in which the opt out (or in) must occur?
Have the student’s parents opted out of the type of directory information in question?
Maintaining good records is your first defense against a FERPA complaint. If you have questions about what you should include in your directory information policy or are worried about a particular information release, don’t hesitate to call Karen, Steve, Bobby, Coady, Tyler, Jordan, or Sara at (402) 804-8000, or shoot all of us an e-mail at ksb@ksbschoollaw.com.