Jonathan F. (Jon) Duncan, Thursday, July 15, 2010 | Filed under: Miscellaneous
The Department of Education recently published new
guidance regarding disclosure of education records during emergencies and disasters. After providing a basic refresher on FERPA requirements, the Department answers a series of hypothetical questions in the context of natural or man-made disasters. Three items merit attention here.
First, the Department makes clear that the health or safety exception in FERPA "is temporally limited to the period of the emergency" and does not permit so-called blanket releases of information. Second, disclosure decisions must be made "on a case-by-base basis, taking into account the totality of the circumstances pertaining to a threat to the health and safety of the student or others." Third, the exception does not allow disclosure in connection with the threat of a possible or eventual emergency. In other words, disclosure of education records in connection with emergency preparation activities is not permitted.
The flexible standards acknowledge the discretion which must be afforded school administrators in an emergency. If an administrator can articulate a rational basis for disclosing personally identifiable information in an emergency, the Department of Education will defer to the administrator.