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Application of the Family Educational Rights and Privacy Act

Program Memorandum - OVAE/DVTE - 99-12
Date: May 27, 1999
To: State Directors of Vocational - Technical Education
State Directors of Community, Technical and Junior Colleges
State Tech-Prep Coordinators
From: Patricia W. McNeil
Subject: Application of the Family Educational Rights and Privacy Act to Performance Reporting under the Perkins Vocational and Technical Education Act of 1998

The purpose of this memorandum, which was developed in consultation with the Department's Family Policy Compliance Office, is to address concerns raised by some States that the Family Educational Rights and Privacy Act (FERPA) prohibits eligible agencies and eligible recipients under the Carl D. Perkins Vocational and Technical Education Act of 1998 (Public Law 105-332)(Perkins III) from complying with the performance accountability requirements of section 113 of Perkins III. Section 5 of Perkins III states that "[n]othing in this Act shall be construed to supersede the privacy protections afforded students and parents under" FERPA.

FERPA and the accountability requirements established by Perkins III are not in conflict. FERPA does not pose an obstacle to the ability of eligible agencies and eligible recipients to comply with the requirements of section 113 or other reporting requirements established under Perkins III.

Family Educational and Privacy Rights Act

As you know, FERPA is a Federal law that protects an eligible student's privacy interest in his or her "education records." In particular, FERPA affords eligible students the right to inspect and review their education records, the right to seek to have the records amended, and the right to have some control over the disclosure of information from the records. The term "education records" is broadly defined as:

 
"[T]hose records, files, documents, and other materials, which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution. [20 U.S.C. § 1232g(a)(4). See also 34 CFR § 99.3 "Education records."]

FERPA provides that education records, or personally identifiable information from such records, may be disclosed by educational agencies and institutions only after an eligible student provides prior written consent, except in statutorily specified circumstances. [20 U.S.C. § 1232g(b)(1) and (d). See also 34 CFR § 99.30.] "Personally identifiable information" is defined by 34 CFR § 99.3 as information that "includes but is not limited to:

  1. the student's name;
  2. the name of the student's parent or other family member;
  3. the address of the student or the student's family;
  4. a personal identifier, such as the student's social security number or student number;
  5. a list of personal characteristics that would make the student's identity easily traceable; or
  6. other information that would make the student's identity easily traceable."

FERPA generally prohibits the nonconsensual disclosure of information derived from education records, except in certain circumstances [20 U.S.C. § 1232g(b); 34 CFR § 99.31]. If one or more of the exceptions are met, an educational agency or institution may disclose education records, or personally identifiably information from education records, without prior written consent.

One of these statutory exceptions permits the nonconsensual disclosure of information derived from education records to "authorized representatives of" the Comptroller General of the United States, the Secretary, or "State educational authorities" "in connection with the audit and evaluation of Federally-supported education programs, or in connection with the enforcement of the Federal legal requirements which relate to such programs." Any information collected by these officials "shall be protected in a manner which will not permit the personal identification of students and their parents by other than those officials, and such personally identifiable data shall be destroyed when no longer needed for such audit, evaluation, and enforcement of Federal legal requirements." [20 USC § 1232g(b)(1)(C), (b)(3). See also 34 CFR § 99.31].

Accountability Requirements of Perkins III

To promote continuous program improvement, as well as to ensure optimal return on the Federal investment, Perkins III creates a State performance accountability system. Under this system, the Secretary and each eligible agency reach agreement on annual levels of performance for a number of "core indicators" specified in the law:

  • Student attainment of challenging State established academic, and vocational and technical, skill proficiencies.
  • Student attainment of a secondary school diploma or its recognized equivalent, a proficiency credential in conjunction with a secondary school diploma, or a postsecondary degree or credential.
  • Placement in, retention, and completion of, postsecondary education or advanced training, placement in military service, or placement or retention in employment.
  • Student participation in and completion of vocational and technical education programs that lead to nontraditional training and employment [section 113(a) and (b) of Perkins III].

Eligible agencies may also identify additional core indicators and set adjusted levels of performance for these indicators.

Section 113(c) of Perkins III requires each eligible agency receiving an allotment under section 111 of Perkins III to annually prepare and submit a report to the Secretary regarding:

  1. the progress of the State in achieving the State adjusted levels of performance on the core indicators of performance; and
  2. information on the levels of performance achieved by the State with respect to the additional indicators of performance, including the levels of performance for special populations." [section 113(c)(1)]

The report must also include a "quantifiable description of the progress special populations participating in vocational and technical education programs have made in meeting the State adjusted levels of performance established by the eligible agency" [section 113(c)(2)].

In addition, section 114(a)(1) of Perkins III requires the Secretary "to collect performance information about, and report on, the condition of vocational and technical education and on the effectiveness of State and local programs, services, and activities carried out under" title I of Perkins III. Section 114(c)(4) authorizes the Secretary to "collect and disseminate information from States regarding State efforts to meet State adjusted levels of performance described in section 113" of Perkins III. Section 206 of Perkins III requires eligible agencies to "prepare and submit to the Secretary a report on the effectiveness of the tech-prep programs" assisted under Title II.

Further, section 114(b)(2) of Perkins III requires all eligible agencies receiving assistance under Perkins III to "cooperate with the Secretary in implementing the information systems developed pursuant to" Perkins III.

Eligible agencies must use the State adjusted levels of performance to evaluate the activities of eligible recipients annually [section 123(b)]. Eligible agencies also have a responsibility to ensure the accuracy of performance information reported by eligible recipients. Section 122(c)(20) of Perkins III requires eligible agencies to describe in their State plans how they "will ensure that the data reported to the eligible agency from local educational agencies and eligible institutions under this title and the data that the eligible agency reports to the Secretary are complete, accurate, and reliable."

Application of FERPA to Perkins III Reporting Requirements

The Department will collect information from eligible agencies about State progress in meeting the State adjusted levels of performance through an OMB-approved annual performance report that we expect will be finalized later in 1999. Members of the public will have an opportunity to comment upon the annual performance report before it is finalized.

The Department does not intend to collect any personally identifiable information with respect to any student as part of this annual performance report. However, the aggregate information that will be collected may be derived from the education records of students. Since reporting of this performance information is required by section 113(c) of Perkins III, the nonconsensual disclosure of this information by eligible agencies to the Secretary is permitted by 20 USC § 1232g(b)(1)(C), 34 CFR § 99.31(a)(3) and 34 CFR § 99.35.

To fulfill their reporting responsibilities under Perkins III, eligible agencies may request such performance information as they deem appropriate from eligible recipients, to the extent consistent with State law. This information may or may not include personally identifiable information with respect to individual students, depending upon how the State chooses to carry out its accountability and performance reporting responsibilities. For example, if there was only one limited English proficient (LEP) student in a program, the reporting of performance information for the program disaggregated by LEP status could entail the disclosure of personally identifiable information because this information could "make the student's identity easily traceable" [34 CFR §99.3]. Whether or not it includes personally identifiable information, the performance data collected from eligible recipients may be derived from the education records of students.

Since the reporting of this information is required by section 113(c) of Perkins III, the nonconsensual disclosure of this information, including personally identifiable information, by eligible recipients to eligible agencies is permitted by 20 USC § 1232g(b)(1)(C), 34 CFR § 99.31(a)(3) and 34 CFR § 99.35.

If the eligible recipient discloses personally identifiable information, both the eligible recipient and the eligible agency must comply with the requirements of 34 CFR § 99.35(b). The information must "be protected in a manner that does not permit personal identification of individuals by anyone except" Federal or State educational officials and "be destroyed when no longer needed for the purposes" of fulfilling Federal legal requirements. Pursuant to 34 CFR §99.32, if the eligible recipient discloses personally identifiable information with respect to any student to the eligible agency, it must maintain a record of this disclosure with the education records of the student.

I hope this memorandum addresses your concerns about the application of FERPA to the Perkins III reporting requirements. Please direct any further questions you may have about FERPA to:

Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202-4605
(202) 260-3887 (Telephone)
(202) 260-9001 (Fax

 
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Last Modified: 10/16/2007