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.

Related Posts

Recent Articles

KBS Reference Desk: On Call Employees Over Holidays
December 17, 2021
KBS Reference Desk: Holiday Decorations
December 10, 2021
KBS Reference Desk: Removal of Library Books
December 3, 2021
KBS Reference Desk: Attendance Waivers
November 19, 2021
KBS Reference Desk: HB 103 Texas Active Shooter Alert
November 12, 2021
KBS Reference Desk: Remote Learning and ADA-Funding
November 5, 2021
KBS Reference Desk: CBD Oil
October 29, 2021
KBS Reference Desk: Temporary Custodians of Record – TPIA
October 22, 2021
KBS Reference Desk: Dyslexia Handbook Update
October 15, 2021
KBS Reference Desk: Peace Officer Legislation
October 8, 2021
KBS Reference Desk: HB 1525 PTO Donations
October 1, 2021
KBS Reference Desk: State Certifications Update – SB 13 & SB 19
September 24, 2021
KBS Reference Desk: Accelerated and Supplemental Instruction HB 4545
September 17, 2021
KBS Reference Desk: Active Threat Excercises
September 10, 2021
KBS Reference Desk: HB 1927 Firearms
September 3, 2021
KBS Reference Desk: Remote Participation in Board Meetings
August 27, 2021
KBS Reference Desk: Waiving Minimum Attendance Requirements for Seriously Ill Students
August 20, 2021
KBS Reference Desk: Inquiring About Vaccine Status
August 13, 2021
KBS Reference Desk: Temporary Suspension of TPIA due to Catastrophe
August 6, 2021
KBS Reference Desk: Standard for Reporting Child Abuse and Neglect
July 30, 2021
KBS Reference Desk: Bullying Policies and Reporting SB 2050
July 23, 2021
KBS Reference Desk: Homeschoolers and UIL
July 16, 2021
KBS Reference Desk: TOMA Suspension Extension
July 9, 2021
KBS Reference Desk: Revision to Resignation without Penalty Deadline
July 2, 2021
KBS Reference Desk: SB 179 School Counselors
June 25, 2021