KBS Reference Desk: Subpoenas and FERPA

Q:       We received a subpoena for records from an attorney representing a former teacher who was fired for insubordination; some of the responsive documents, such as emails, include personally identifiable student information. Do we release the student information since it is contained within the responsive documentation?

 A:        No, not right away. Before releasing personally identifiable student information, the District must first provide reasonable notice to the student or student’s parents (if a minor), so that the parent or eligible student may seek protective action through the judicial system.    

 The Family Educational Rights & Privacy Act of 1974 (“FERPA”) provides that a school district is authorized to release a student’s education records pursuant to any court order or lawfully issued subpoena, upon condition that it first provide adequate notice to the student or the student’s parent (if the child is a minor). See 20 U.S.C. § 1232g(b)(2)(B). Specifically, the federal regulations provide that, before complying with the subpoena, a school district must make a “reasonable effort to notify” the student or parent of the subpoena, so that the parent or eligible student has time to seek protective action through the judicial system. See 34 CFR § 99.31(a)(9). The regulations do not specify what “reasonable” notice includes, but generally the more time the district has to comply with the subpoena, the more time it should provide the parent to consider judicial intervention. The district should provide the parent with a copy of the subpoena, along with written notice of the parent’s right to intervene and a date certain where the district will release the records in compliance with the subpoena, absent judicial intervention.

 It is important to note, though, that confidentiality rules or special exceptions may apply when a subpoena (1) is issued by a federal grand jury, (2) pertains to a parent who is a party to a court proceeding involving child abuse, neglect, or dependency matters, (3) is issued for a law enforcement purpose and the issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed, or (4) is issued by the United States Attorney General. In these circumstances or any others that materially differ from the above hypothetical, we recommend contacting your local school attorney.