The purpose of this memorandum is to provide information to school personnel in response to an increasing number of inquiries received by the Special Education Unit from school districts and staff of the Department of Human Services (DHS) concerning the release of student education records to DHS personnel engaged in conducting maltreatment investigations.
The Arkansas Child Maltreatment Act, Arkansas Code Annotated §§ 12-12-501 through 12-12-519, authorizes the Arkansas Department of Human Services (department) and law enforcement agencies to have access to a child’s public and private school records during the course of a child maltreatment investigation. [See A.C.A. § 12-12-508 (d)]
Confidentiality of all student educational records is governed by the Family Educational Rights and Privacy Act (FERPA) of 1974 found at 34 Code of Federal Regulations (CFR) §§ 99.1 through 99.67. Other than direct exchange of educational records between educational entities involved in the education of a student, FERPA generally prohibits educational agencies or institutions from disclosing personally identifiable information in a student’s educational records without a prior written consent signed and dated by a parent, subject to certain exceptions.
One exception is the “juvenile justice system” exception. It allows educational agencies or institutions to disclose student educational records to State and local officials or authorities to whom this information is specifically allowed to be reported or disclosed pursuant to a Statute adopted after November 19, 1974. A.C.A. § 12-12-508(d) is such a statute. Subsection (d) states: “The department and law enforcement officials shall be allowed access to the child’s public and private school records during the course of the child maltreatment investigation.”
The juvenile justice system exception to FERPA’s prior written consent provisions is subject to four conditions, all of which must be met before the educational records are disclosed:
(1) The disclosure or reporting of the records must be to a State or local juvenile justice system agency.
(2) The disclosure must be based on a State statute, passed after November 19, 1974, (The date FERPA was enacted,) authorizing the disclosure.
(3) The disclosure must relate to the juvenile system’s ability to serve, prior to adjudication, the student whose records are being released.
(4) The State or local officials must certify, in writing, that the institution or individual receiving the personally-identifiable information has agreed not to disclose it to a third party, except as provided under State law, without the prior written consent of the parent of the student.
It is the obligation of the educational agency or institution to determine if the request for disclosure of student educational records complies with the requirements stated above. In addition, FERPA requires that under such circumstances of records’ release, the student’s parent is to be notified of the release of records in the manner required by the FERPA regulations.