Request By:
Ms. Donna C. Metcalf
Regional Counselor
Bluegrass Vocational Education Region Fifteen
100 Vo-Tech Road
Lexington, Kentucky 40511
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
You have asked the Office of the Attorney General for an opinion regarding informal inquiries about former students who have attended the Bluegrass Area Vocational Center. Your question is prompted by the situation of prospective employers who call the vocational center asking for information about a former student. You want to know how much and what kinds of data you can release in this manner.
The law governing this matter is the Family Educational Rights and Privacy Act of 1974, 20 USC § 1232g, et seq. This federal act and its regulations concern the inspection and release of educational records. The term "educational records" is defined, with limited exceptions, as meaning those records, files, documents and other materials which contain information directly related to a student and which are maintained by an educational agency or institution or by a person acting for such agency or institution. 20 USC § 1232g (a)(4)(A)(i), (ii) and 45 CFR § 99.3.
Your question primarily concerns the release of information from educational records rather than the inspection of these records. As a broad basic statement, this federal law prohibits an educational agency or institution from releasing or providing access to any personally identifiable information in educational records, with limited exceptions not pertinent for our consideration here, unless there is written consent from the student's parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student's parents and the student, if desired by the parents. 20 USC § 1232g (b)(2)(A). For this law, whenever a student has attained eighteen years of age, or is attending an institution of postsecondary education, the permission or consent required of and the rights accorded to the parents of the student are thereafter only to be required of and accorded to the student. 20 USC § 1232g (d); and, as made clear from the regulations, this law "applies to education records of students who are or have been in attendance at the educational agency or institution which maintains the records." (Emphasis added.) 45 CFR § 99.1 (d).
It is the opinion of the Office of the Attorney General that the regulations at 45 CFR § 99.30 are principally responsive to your inquiry. Subsection (a)(1) provides:
"An educational agency or institution shall obtain the written consent of the parent of a student or the eligible student before disclosing personally identifiable information from the education records of a student. . . ."
Of most importance in answering your questions is subsection (c) of this regulation, which reads:
"(c) The written consent required by paragraph (a) of this section must be signed and dated by the parent of the student or the eligible student giving the consent and shall include:
(1) A specification of the records to be disclosed,
(2) The purpose or purposes of the disclosure, and
(3) The party or class of parties to whom the disclosure may be made."
Thus, we believe you are not entitled to release or otherwise disclose, orally or in writing, any personally identifiable information from the educational records of a student or former student unless there is a signed, written consent by the parent or student (former student) , as the case may dictate. Note with particularity what the consent is required to include. The regulation authorizes, as we view it, a former student preparing a consent that would authorize you to release such records as they desire to a "class of parties" which we believe would include prospective employers.
There is one additional aspect of the frequent contact between prospective employers and educational institutions, such as an area vocational school, we believe needs to be addressed. It is not at all uncommon for a prospective employer to request an instructor of a former student to make a confidential recommendation respecting an application for employment. Because of the "right of access" theme of the statute and regulations, steps must be taken to make confidential recommendations respecting an application an exception to the usual rule. The statute and regulations permit such an exception. See 20 USC § 1232g (a)(1)(B)(iii)(II). A student may waive his or her right to inspect and review confidential letters and confidential statements of recommendations so long as the student is, upon request, notified of the names of all individuals providing the letters or statements, and that the letters or statements are used only for the purpose for which they were originally intended and that such waiver is not required by the agency or institution as a condition of admission to or receipt of any other service or benefit from the agency or institution. 45 CFR § 99.7 (c), (d). See also 45 CFR § 99.12 (a).
We trust the above will be of assistance to you. If you have further questions, please contact us.