AGO 12-742.

• Case Date: February 06, 2012
• Court: South Carolina

South Carolina Attorney General Opinion 2012. AGO 12-742. 12-742Alan Wilson Attorney GeneralFebruary 6, 2012The Honorable Leon Lott Sheriff Richland County 5623 Two Notch Road Columbia, SC 29223Dear Sheriff Lott: We received your letter requesting an opinion of this office. You state that the Richland County Sheriffs Department (the "Department") has encountered problems with a school district (the "District") regarding the sharing of information on crimes committed in the schools. You inform us the District asserts it will not provide the requested information to the Department, pursuant to the Family Educational Rights and Privacy Act ("FERPA"). You ask whether or not FERPA prohibits the District from providing the requested information to the Department in the performance of its law enforcement duties. Law/Analysis FERPA, 20 U.S.C. §1232g et seq., was enacted by Congress to protect the privacy rights of students and their parents regarding education records. FERPA conditions federal funding through programs administered by the federal Department of Education (the "DOE") to educational institutions on the requirement that such institutions not have a "policy or practice of permitting the release of education records (or personally identifiable information contained therein) of students without the written consent of [the students or] their parents." 20 U.S.C. §1232g(b)(1); seeOwasso Independent School District No. 1-011 v. Falvo. 534 U.S. 426, 428-29 (2002). The United States Supreme Court has recognized that FERPA does not create an individual enforceable right under 42 U.S.C. §1983. Gonzaga University v. Doe. 536 U.S. 273, 289 (2002). In fact, FERPA does not prohibit the release of educational records. Rather, FERPA's sole enforcement mechanism is the DOE's power to withhold federal funds from educational institutions which either receive funds directly from the DOE or which have students in attendance who receive funds through programs administered by the DOE. See Op. S.C. Atty. Gen.. March 30, 2007. Thus, every public school in South Carolina would be required by federal law to comply with the disclosure requirements of FERPA. FERPA, on its face, appears to limit its provisions to those situations where an educational agency "has a policy or practice of permitting the release of education records." See 20 U.S.C. §1232g(b)(1) and (2). FERPA was clearly designed to address systematic, not individual, violations of students' privacy by unauthorized releases of sensitive information in their educational records. See Jensen v. Reeves. 45 F.Supp.2d 1265, 1276 (D. Utah 1999). This focus on policies which systematically invade a student's privacy is consistent with FERPA's allowances for the disclosure of such information in particular circumstances on a case-by-case basis. FERPA's restrictions on disclosure apply to personally identifiable information contained in educational records maintained by an educational institution. We note that FERPA broadly defines an "educational record" as "those records, files, documents, and other materials which - (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." 20 U.S.C. §1232g(a)(4)(A). The term "personally identifiable information" includes, but is not limited to, the student's name, the name of the student's parents or other family members, the student's address, any personal identifiers, including the student's social security number, any list of personal characteristics that would make the student's identity easily traceable, or any other information that would make the student's identity easily traceable. 20 U.S.C. §1232g(a)(5)(A). Addressing your question, we note that...