Ask the FERPA Professor

September 9, 2019
  • FERPA
  • FERPA Professor
  • title ix
  • title nine

Good day, FERPA Professor,

I'm writing to ask about an inquiry from a former student’s attorney.

Our university put him in touch with our contracted lawyer (who is not an employee of the institution). There is not currently a lawsuit nor subpoena.  Our lawyer asked for a copy of a statement the student submitted to our Title IV coordinator when he was a student. We denied the request for the statement unless the lawyer submitted a subpoena or a signed release from the student.

Just checking: Is there a loophole that would permit me to share that information with our contracted lawyer?  

 

Thank you for your helpful advice.

Sincerely,

Ella Vayder

___________________________________________________________________________________

Dear Ella,

It is possible, depending on how the University defines "school official," to give your attorney access to the education records of a student in compliance with FERPA.

FERPA regulations permit institutions to designate their contractors, vendors, etc. as school officials so long as the conditions of 99.31(a)(1)(i)(B) are met.  In particular, the contractor must be under the direct control of the institution to be designated as a school official. 

If these conditions are met, then the institution could share student education records with the attorney as appropriate. 

You can find the referenced language on page 159 of the 2012 AACRAO FERPA Guide.

I hope this is helpful in answering your question.

The FERPA Professor

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