In October, 2009, the Family Policy Compliance Office (“FPCO”), issued a policy memorandum designed to guide local school districts in complying with the provisions of the Family Educational Rights Privacy Act (“FERPA”) in the context of general swine flu preparedness activities and in the event of an H1N1 outbreak. FPCO is a part of the U.S. Education Department whose mission is to effectively implement FERPA and other applicable federal law concerning student privacy. Generally, FERPA prohibits the disclosure of personally identifiable student information without parental consent, except in limited circumstances where a specific exception to the parental consent requirement applies. In the context of swine flu, FPCO notes that a district may be permitted to disclose personally identifiable student information without parental consent under FERPA’s health and safety exception, or its subpoena exception.

The health and safety exception permits local school districts to release personally identifiable information “to appropriate parties in connection with an emergency, if that information is necessary to protect the health and safety of the student or other individuals.” An actual and current swine flu outbreak in a particular school or district would constitute an emergency justifying the disclosure of personally identifiable student information, as long as the local educational agency, taking into account the totality of the circumstances, could determine that an “articulable and significant threat” existed that would justify the disclosure of specific confidential student information without parental consent to appropriate parties. To remain within the health and safety exception, however, the district must limit its disclosure of personally identifiable student information to the time period of the emergency (outbreak), and to those parties such as law enforcement officials, public health officials, and trained medical personnel who must access the information to protect the health and safety of the student or others. FPCO cautions, however, that the health and safety emergency exception would not apply to a possible or eventual “emergency” for which the likelihood of occurrence is unknown. In other words, generally applicable pandemic preparedness activities would not justify disclosure of personally identifiable student information under FERPA, as the threat of an H1N1 outbreak is not sufficient to warrant the invocation of FERPA’s health and safety exception.

A school district could also release personally identifiable student information in order to comply with a lawfully issued subpoena, for example, a subpoena issued by a local health authority relative to a swine flu outbreak.

A copy of the FPCO guidance can be found by clicking here.