New Guidance From Department of Education on Disclosure of FERPA-Protected Information in Emergency or Disaster

The U.S. Department of Education's Readiness and Emergency Management for Schools recently issued guidance to assist school districts in handling questions that arise related to the disclosure of student information when responding to natural or man-made disasters and emergencies. Published in an easy to read question/answer format, the guidance is instructive for school districts in understanding when, what and how information may be shared with outside parties in an emergency.

For instance, the guidance clarifies that under the Family Educational Rights and Privacy Act's (FERPA's) health and safety exception (to its general prohibition on the disclosure of personally identifiable student information without the consent of a parent or eligible student), when a school district determines "there is an articulable and significant threat to the health or safety of the student or other individuals and that a party needs personally identifiable information from education records to protect the health or safety of the student or other individuals, it may disclose that information to such appropriate party without consent." Significantly, the guidance notes that this standard is flexible and that where school administrators can show a rational basis for their decisions, the Department will defer to the school in order to ensure the appropriate resources are brought to bear on an emergency.

The guidance provides examples of the types of emergencies that would warrant such disclosures and examples of appropriate parties to whom information may be disclosed. It also notes that when a disclosure is made under this exception, school districts must record in the student's education record the nature of the specific threat that formed the basis for the disclosure and the parties to whom the information was disclosed.