Ask the FERPA Professor

June 2, 2020
  • census
  • FERPA Professor
cartoon figure reminiscent of Einstein stands in front of a chalkboard with the board "FERPA" written on it
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



Dear Sleepless,
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.



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