Are E-mails Education Records Under FERPA?

If a student sends an e-mail complaining about a professor, should the professor have the right to see the name of the student that wrote the complaint? What if a professor writes an e-mail to another professor about a student, would a student have the right to access to the e-mail because the e-mail discusses the student? These are the very difficult questions that have come under debate relating to the privacy rights of e-mails in the educational context under the Family Educational Rights and Privacy Act (“FERPA”) (20 U.S.C. § 1232g; 34 CFR Part 99).

FERPA is a federal law that protects student education records in institutions that receive public funds. Education records are records that are: “(1) directly related to a student; and (2) maintained by an educational agency or institution, or by a party acting for the agency or institution.” Under FERPA, either the parent of a minority student has the right to access school education records, or an eligible student (a student that is eighteen years or older) has the right to inspect school education records. Generally, a parent cannot request student records once the student has reached the age of majority without the eligible student’s written consent.[i]

As for the school’s right to disclose these records to other school officials, organizations, or persons, generally the school is required to have written consent from the minority student’s parent or the eligible student. However, under 34 CFR § 99.31, FERPA provides several exceptions as to when the school may disclose student records in response to requests from other school officials, organizations, or persons without the consent of the minority student’s parent or the eligible student’s consent. These exceptions are as follows:

• School officials with legitimate educational interest;
• Other schools to which a student is transferring;
• Specified officials for audit or evaluation purposes;
• Appropriate parties in connection with financial aid to a student;
• Organizations conducting certain studies for or on behalf of the school;
• Accrediting organizations;
• To comply with a judicial order or lawfully issued subpoena;
• Appropriate officials in cases of health and safety emergencies; and
• State and local authorities, within a juvenile justice system, pursuant to specific State law.[ii]

In recent years, the current debate under education records derives from FERPA’s failure to distinguish between hardcopy records and electronic records. Accordingly, the courts have begun to question whether electronic communications, such as e-mails, fall under the protections of FERPA.

The question of the bounds of FERPA was brought before the Supreme Court in Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002). In that case, the Court was faced with the question regarding the types of traditional school documents that would be considered education records under FERPA. The Court decided that student’s traditional school assignments did not constitute education records under FERPA. The Court found that Congress did not design FERPA with the thought that privacy rights extended to every record in a school concerning a student. Instead, the Court stated that FERPA pertained only to files in a designated location maintained by the school.

Although Owasso does not discuss e-mails directly, some of the lower courts have used Owasso as guidance in determining the limitations of FERPA as it applies to other types of documentation, such as e-mails. For example, in 2009 a Californian District Court in the case, S.A.v. Tulare Cnty. Office of Educ., CV F 08-1215,2009 Westlaw 3126322 (E.D. Cal. Sept. 24, 2009), issued a decision holding that e-mails were not protected under FERPA because this type of documentation is located in the inboxes and outboxes of recipients through a virtual realm outside of the school and can be easily deleted. Echoing the rationale of Owasso, the Court explained that e-mails are records that cannot be maintained in a single location and overseen by the institution. Accordingly, the District Court held that e-mails, even if it discusses a student, do not fall under the protection of FERPA and may be disclosed without the student’s consent.

At the same time, however, other federal courts have taken the approach to analyze education records not by the type of the record, but rather, by the content in the record alone. For example, in Rhea v. Dist. Bd. of Tr. of Santa Fe Coll., 109 SO. 3d 851 (Fla. 1st DCA. 2013), the Court held that FERPA protected the College’s right to redact the student’s name from an e-mail complaint that was used as part of the grounds to terminate the professor. The professor argued the student author of the e-mail should have been disclosed because the professor had a “legitimate educational interest” for disclosure pursuant to 34 CFR § 99.31. In response, the Court acknowledged that the professor was the “primary subject” of the e-mail because the e-mail discussed the Plaintiff’s teaching methodologies, however, the e-mail as a student complaint “also directly relate[d] to its student author.” Therefore, the Court held, the e-mail was an education record protected under FERPA and the student’s name would remain redacted.

As electronic communications continue to become our primary method of creating records, it will be interesting to see how the federal courts decide to grapple with the bounds of privacy and disclosure in the educational context. Stay tuned as the federal courts continue to develop this very important federal law issue.

If your institution has any further questions or concerns about education law related matters, please email James G. Ryan at jryan@cullenanddykman.com or call him at  516-357-3750.

A special thanks to Melissa Cefalu a law clerk at Cullen and Dykman, for help with this post.