Guide on the disclosure of confidential information: Department of Elementary & Secondary Education

Department of Elementary and Secondary Education information on the disclosure of confidential information

Table of Contents

Overview

The Massachusetts Department of Elementary and Secondary Education is the administrative agency responsible for overseeing the state's system of K-12 education. The mission of the Department is to strengthen the Commonwealth of Massachusetts's public education system so that every student is prepared to succeed in postsecondary education, compete in the global economy, and understand the rights and responsibilities of an American citizen, and in so doing, to close all proficiency gaps. 

Definitions

The following definitions from the state student records regulations, 603 CMR 23.00, will be helpful to your understanding of this section: 

Authorized school personnel: School administrators, teachers, counselors and other professionals who are employed by the school committee or who are providing services to the student under an agreement between the school committee and a service provider, and who are either working directly with the student in an administrative, teaching, counseling, and/or diagnostic capacity. Any such personnel who are not employed directly by the school committee shall have access only to the student record information that is required for them to perform their duties. Administrative office staff and clerical personnel who are either employed by the school committee or are employed under a school committee service contract whose duties require them to have access to student records for purposes of processing information for the student record. Such personnel shall have access only to the student record information that is required for them to perform their duties. The definition of authorized school personnel also includes the individualized education program (IEP) team for students with disabilities.

Directory information: A student's name, address, telephone listing, date and place of birth, major field of study, dates of attendance, weight and height of members of athletic teams, class, participation in officially recognized activities and sports, degrees, honors and awards, and post-high school plans.

Eligible student: Any student who is at least 14 years of age or older or who has entered the 9th grade, unless the school district designates students who are under the age of 14 or who have not yet entered 9th grade as eligible students.

Non-custodial parent:  Any parent who by court order does not have physical custody of the student. This includes parents who by court order do not reside with or supervise the student, even for short periods of time.

Parent: A student’s father or mother, or guardian, or person or agency authorized to act on behalf of the student in place of or in conjunction with the father, mother, or guardian.

Student: Any person enrolled or formerly enrolled in a public elementary or secondary school or any person age three or older about whom a school committee maintains information.

Student Record: All information concerning a student that is organized on the basis of the student's name or in a way that such student may be individually identified, and that is kept by the public schools. It includes all such information and materials regardless of where they are located, except for the personal files of school employees. Personal files of school employees are notes, memory aids and other similar information that is maintained in the personal files of a school employee and is not accessible or revealed to authorized school personnel or any third party. Such information may be shared with the student, parent or temporary substitute of the maker of the record, but if it is released to authorized school personnel it becomes part of the student record.

Third party: Any person, agency, authority or organization other than the eligible student, the student’s parent, or authorized school personnel.

Introduction

Education records maintained by public schools (and private schools that receive federal and state education funding) are governed by the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g and its accompanying regulations, 34 C.F.R. Part 99, as well as the Massachusetts Student Records Regulations, 603 CMR §23.00. Both FERPA and the Massachusetts Student Records Regulations protect the confidentiality of student records by prohibiting schools from disclosing, either orally or in writing, personally identifiable information from a student record to a third party without the written consent of the parent or eligible student, unless an exception to this general consent rule applies. Exceptions permitting schools to release personally identifiable information from a student record without consent are found in 34 C.F.R. §§99.30 and 99.31 and 602 CMR 23.07(4).

Parents of students under age 18 can consent to the release of school records. The Massachusetts Student Records Regulations define a parent as “a student's father or mother, or guardian, or person or agency legally authorized to act on behalf of the student in place of or in conjunction with the father, mother, or guardian.” 603 CMR 23.02. This may include a person authorized to make educational decisions under a Caregiver Authorization. See Glossary and Appendix E. A student who is at least 14 years old or who has entered the 9th grade is an “eligible student” and shares with the parent the right to consent to the release of school records to a third party. Either the parent or eligible student in this situation acting alone can exercise these rights. 603 CMR 23.01.

Schools are generally prohibited, with limited exceptions, from releasing personally identifiable information from a student’s record to a third party without the consent of the parent or eligible student. However, schools may release “directory Information” without the consent of the parent or eligible student, provided that the school gives public notice of the types of information it may release and allows eligible students and parents a reasonable time after such notice to request that this information not be released without prior consent. 603 CMR 23.07(4)(a).

Schools may release student record information to appropriate parties in connection with a health or safety emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. This includes, but is not limited to, disclosures to the local police department and DCF under the provisions of G.L. c. 71, §37L, G.L. c. 119, §51A, 603 CMR 23.07(4)(e).

Schools may release student records without consent in compliance with a lawfully issued subpoena or judicial order. 603 CMR 23.07(4)(b). However, the school must make a reasonable effort to notify the parent or student (if 18 years or older) of the subpoena or judicial order before complying with it to allow the parent or student the opportunity to seek protective action, unless certain exceptions apply. Prior notification is not required for the following: (1) a federal grand jury subpoena or other subpoena issued for a law enforcement purpose if the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; (2) an ex parte order obtained by the United States Attorney General (or designee not lower than Assistant Attorney General) concerning investigations or prosecutions of an act of terrorism or other specified offenses. 34 C.F.R. §99.31(a)(9)(ii)Additionally, when a parent is a party to a court proceeding involving child abuse and neglect, as defined in section 3 of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 note), or dependency matters, and the order is issued in the context of that proceeding, additional notice to the parent by the educational agency or institution is not required. See 20 U.S.C. § 1232g (b)(2)(B).

In instances where the school initiates legal action against a parent or student, or a parent or student initiates legal action against a school, the school may disclose to the court student record information that is relevant to the proceeding, without a court order or subpoena. 34 C.F.R. §99.31(a)(9)(iii).

Written consent to release personally identifiable information from the student record to a third party, must:

  • Specify the records to be released
  • State the purpose of the release
  • Identify the party or class of parties to whom the information may be released
  • Be signed and dated by the parent or eligible student

Third parties who receive personally identifiable information from a student record are prohibited from releasing the information without the consent of the parent or the eligible student. 603 CMR 23.07(4).

When can school personnel disclose student record information to Probation Officers?

School personnel may disclose student record information upon receipt of a request from a Probation Officer for a delinquent child. 34 C.F.R. §99.31(a)(9), G.L. c. 119, §57, and 603 CMR 23.07(4)(c). A school would need a written release or court order to release information on a Care and Protection case. Separately, a school may release student record information in connection with a Child Requiring Assistance case if the school is a party to the case.

When can school personnel disclose student record information to DCF?

Schools shall disclose student record information to DCF in accordance with §§51A and 51B of G.L. c. 119, relating to reports of suspected child abuse or neglect.  Section 51A requires mandated reporters (including teachers and other school personnel) to report cases of suspected child abuse or neglect to DCF. Section 51B requires mandated reporters to disclose to DCF upon request, any information that may be relevant to an investigation of a case of suspected abuse or neglect. G.L. c. 119, §§51A and 51B and 603 CMR 23.07(4)(c) and (e).

If DCF has custody of the student, a school may disclose student records to DCF because DCF is acting as the parent. 603 CMR 23.02. If DCF does not have custody, schools may disclose student record information to DCF only upon consent of the parent or eligible student, or with a court order provided that the school makes a reasonable effort to notify the parent (or student, if the student is 18 or older), in advance of compliance. 34 C.F.R. §99.31(a)(9), 603 CMR 23.07(4)(b).

As required by Title I of the federal Every Student Succeeds Act, school staff may disclose to DCF student record information relevant to making “best interest” determinations for students in foster care and, as necessary, to facilitate immediate enrollment changes. 20 U.S.C. §6311(g)(1)(E). 

When can school personnel disclose student record information to DYS?

School personnel may disclose student record information for a committed youth upon receipt of a request from DYS under the provisions of G.L. c. 119, §69A and 603 CMR 23.07(4)(c), or with a court order or lawfully issued subpoena. Schools must make a reasonable effort to notify the parent (or student, if the student is 18 or older), in advance of compliance unless explicitly prohibited in the court order. 34 C.F.R. §99.31(a)(9) and 603 CMR 23.07(4)(b).

When can school personnel disclose student record information to Juvenile Court Investigators?

School personnel may disclose student record information to the Juvenile Court Investigator upon consent of the parent or eligible student, or with a court order or lawfully issued subpoena provided that the school makes a reasonable effort to notify the parent (or student, if the student is 18 or older), in advance of compliance. 34 C.F.R. §99.31(a)(9) and 603 CMR 23.07(4)(b).

When can school personnel disclose student record information to the Probate and Family Court?

School personnel may disclose student record information to the Probate and Family Court upon consent of the parent or eligible student, or with a court order or lawfully issued subpoena provided that the school makes a reasonable effort to notify the parent (or student, if the student is 18 or older), in advance of compliance. 34 C.F.R. §99.31(a)(9) and 603 CMR 23.07(4)(b).

When can school personnel disclose student record information to Juvenile Court Clinicians?

School personnel may disclose student record information to the Juvenile Court clinician upon consent of the parent or eligible student, or with a court order or lawfully issued subpoena provided that the school makes a reasonable effort to notify the parent (or student, if the student is 18 or older), in advance of compliance. 34 C.F.R. §99.31(a)(9) and 603 CMR 23.07(4)(b).

When can a school disclose student record information to a student's Care & Protection attorney?

School personnel may disclose student record information to a student's Care and Protection attorney upon consent of the parent or eligible student, or with a court order or lawfully issued subpoena, provided that the school makes a reasonable effort to notify the parent (or student, if the student is 18 or older), in advance of compliance. 34 C.F.R. §99.31(a)(9) and 603 CMR 23.07(4)(b).

When can school personnel disclose student record information to a student's delinquency attorney?

School personnel may disclose student record information to a student's delinquency attorney upon consent of the parent or eligible student, or with a court order or lawfully issued subpoena provided that the school makes a reasonable effort to notify the parent (or student, if the student is 18 or older), in advance of compliance. 34 C.F.R. §99.31(a)(9) and 603 CMR 23.07(4)(b).

When can school personnel disclose student record information to a parent's attorney?

School personnel may disclose student record information to a parent's attorney upon consent of the parent or eligible student, or with a court order or lawfully issued subpoena provided that the school makes a reasonable effort to notify the parent (or student, if the student is 18 or older), in advance of compliance. 34 C.F.R. §99.31(a)(9) and 603 CMR 23.07(4)(b).

When can school personnel disclose student record information to a GAL or CASA?

School personnel may disclose student record information to a GAL or CASA upon consent of the parent or eligible student, or with a court order or lawfully issued subpoena provided that the school makes a reasonable effort to notify the parent (or student, if the student is 18 or older), in advance of compliance. 34 C.F.R. §99.31(a)(9) and 603 CMR 23.07(4)(b).

When can school personnel disclose student record information to police and prosecutors?

Under state law, school personnel may report a crime, and may provide information about students to police related to the criminal incident. School superintendents are required to report to the local chief of police any incident involving a student’s possession or use of a dangerous weapon on school premises. G.L. c. 71, §37L.  School principals are required to notify local law enforcement regarding incidents of bullying or retaliation if the principal has a reasonable basis to believe that criminal charges may be pursued against the aggressor. 603 CMR 49.06(2).

Otherwise, except in an emergency, school personnel may disclose student record information to police and prosecutors only upon consent of the parent or eligible student, or with a judicial order or lawfully issued subpoena. Schools must make a reasonable effort to notify the parent (or student, if the student is 18 or older), in advance of compliance unless explicitly prohibited in the court order. 34 C.F.R. §99.31(a)(9) and 603 CMR 23.07(4)(b). In a health or safety emergency, a school may disclose information regarding a student to appropriate parties if knowledge of the information is necessary to protect the health or safety of the student or other individuals. This includes, but is not limited to, disclosures to the local police department and the Department of Children and Families under the provisions of G.L. c. 71, §37L, G.L. c. 119, §51A, and 603 CMR 23.07(4)(e).

When can school personnel disclose student record information to school resource officers?

School personnel may disclose student record information to school resource officers who are employees of the school district since they are considered authorized school personnel. School resource officers who are not employees of the school district are considered law enforcement and are governed by the regulations regarding disclosure to the police; see above. 

Disclosure as part of the Community Based Juvenile Justice Programs

When can school personnel disclose student record information as part of the Community Based Juvenile Justice Programs?  

Schools are invited participants to the Community Based Juvenile Justice Programs (roundtables) pursuant to G. L. c. 12, §32. Although the CBJJ statute expressly speaks to agency collaboration with the District Attorney’s office, the statute does not independently authorize school personnel to release student record information beyond the limits outlined in this section.

When can school personnel disclose student record information to other school officials?

School personnel may disclose student record information to authorized school personnel who are providing services to a student when such access is required in the performance of their official duties. 603 CMR 23.07(3). School personnel may also disclose school record information to authorized school personnel of the school to which the student seeks or intends to transfer, provided that the school gives notice that it forwards student records to schools in which the student seeks or intends to enroll. 603 CMR 23.07(4)(g)

Disclosure in other situations

Are there other situations where school personnel can disclose student record information without prior written consent?

Schools may disclose student record information without prior consent to local and state health department personnel when such access is required in the performance of their official duties and to appropriate parties in connection with a health and safety emergency in order to protect the health and safety of the student or others. See 603 CMR 23.07(4)(h) and 603 CMR 23.07(4)(e). Schools may also disclose student record information to federal, state, and local education officials in connection with the audit, evaluation, or enforcement of federal and state education laws. 34 C.F.R. §99.31 and 603 CMR 23.07(4)(d).

When can school personnel disclose information to the Office of the Child Advocate (OCA)?

The OCA has unrestricted access to all electronic records, reports, and materials of any program that is operated, licensed, or funded by an executive agency, in order to better understand the needs of children in the custody of the Commonwealth or who are receiving services from an executive agency. The OCA is bound by any limitations on the use or release of information imposed by law upon the party furnishing such information. G.L. c. 18C, §6.

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