Request By:
Mr. James A. Pursifull
Principal
Bell County High School
Pineville, Kentucky 40977
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
As the Principal of Bell County High School you have written to the Office of the Attorney General asking for an interpretation of the federal law regarding the transfer of records from one school to another. You asked for a clarification as to whether a school system may send a student's transcript to another school without obtaining the signed permission of the student's parents when the student has moved school residency. We are of the opinion that such a practice is permitted under the relevant federal law, applicable to all of Kentucky's schools.
The Family Educational Rights and Privacy Act of 1974, 20 U.S.C., § 1232g, often referred to as the "Buckley Amendment, " and the regulations that have been adopted pursuant to it, 45 CFR § 99.1 et seq., address both the disclosure and the access to a student's educational records, not otherwise exempted, containing personally identifiable information. For the most part, the educational records of a student under eighteen years of age may not be disclosed without first having obtained the written permission or prior waiver of the parent of the student. For the sake of convenience or necessity, this basic rule does not always apply. One situation in which it does not apply is in the transmittal of a student's records from one school to another where the student will be enrolling after moving from one school district to another, whether in state or out of state.
The pertinent section of the Buckley Amendment controlling in this situation is 20 U.S.C. § 1232g, (b)(1)(B), which reads:
"No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to the following -
(B) officials of other schools or school systems in which the student seeks or intends to enroll, upon condition that the student's parents be notified of the transfer, receive a copy of the record if desired, and have an opportunity for a hearing to challenge the content of the record;"
Thus, we believe it is clear that a school system may have a policy or practice of permitting the release of education records of students without the written consent of the students' parents in the situation described above. It is to be observed that the "sending" school is required to notify the parents the records are being transferred. The sending school should at the same time notify the parents that they may obtain a copy of the child's education records if they choose and further should inform them of the opportunity for a hearing to challenge the content of the student's records. The regulations on this matter may be found at 45 CFR § 99.34(a) as follows:
"(a) An educational agency or institution transferring the education records of a student pursuant to § 99.31(a)(2) shall:
(1) Make a reasonable attempt to notify the parent of the student or the eligible student of the transfer of the records at the last known address of the parent or eligible student, except:
(i) When the transfer of the records is initiated by the parent or eligible student at the sending agency or institution, or
(ii) When the agency or institution includes a notice in its policies and procedures formulated under § 99.5 that it forwards education records on request to a school in which a student seeks or intends to enroll; the agency or institution does not have to provide any further notice of the transfer;
(2) Provide the parent of the student or the eligible student, upon request, with a copy of the education records which have been transferred; and
(3) Provide the parent of the student or the eligible student, upon request, with an opportunity for a hearing under Subpart C of this part."
Particular attention should be given to § 99.34(a)(1)(ii). This office encourages all school districts to adopt policies setting forth in detail how this matter of transferring records and other related concerns pertaining to a student's educational records will be handled by the school district. See the regulations at 45 CFR § 99.5 regarding the formulation of school policies for compliance with the Buckley Amendment and also § 99.6 concerning the required annual notification to parents of their rights under the law. A photocopy of these regulations sections are enclosed for your consideration.