Dear FERPA Prof:
The U.S. Census Bureau has contacted our institution requesting the
name, address, and date of birth of all of our students. My
institution wants to provide this information, but we don't designate
"date of birth" as a directory information item. What, if anything, can
be done to allow the institution to provide this information in response
to the Census Bureau request?
Sleepless in Seattle
To begin with, remember that FERPA defines directory information as "information contained in the education record of a student that would not generally be considered harmful or an invasion of privacy if
disclosed." See §99.3 "Directory Information" in the FERPA
regulations. The items you mention -- name, address, and date of birth --
all meet the criteria and can be included as part of an institutions
directory information. Items such as race, gender, or ethnicity do not
meet this definition and thus, cannot be included and disclosed.
Institutions are permitted to provide the Census Bureau with directory
information on any student who has not opted out of having directory information disclosed. However, the institution is limited to
disclosing only those items which it has included in its notification to students in attendance. This means that, if your institution has not
included "d.o.b." as one of its directory information items, then it
would not be permitted to disclose that information in response to the
Census Bureau request.
There is, however, a possible solution for your problem. Under FERPA, an institution is permitted to change its
directory information items at any time, so long as the institution
meets the conditions set forth in §99.37(a). The requirements are that
the institution give public notice of (1) the pii items designated as directory information, (2) the student's right to refuse to let the
institution designate those types of information about the student as
directory information, and (3) the period of time within which a student
has to notify the institution not to include the student's information
as directory information. Thus, your institution could revise its
directory information policy if it meets the above conditions, allowing
it to then provide the designated information to the Census Bureau on
all students, other than those who opted out. You can find the above
cited FERPA regulatory language on pages 153 and 166 of the 2012 AACRAO FERPA Guide.