We all recognize the Family Educational Rights and Privacy Act (“FERPA”) as the federal law that prohibits the release of personally identifiable student information without the consent of a parent or eligible student.  A school district’s obligations under FERPA are not relaxed during these difficult times where school districts are trying to cope with the endless problems created by COVID-19.  However, in these times, schools should understand the “health or safety emergency” exception to FERPA’s general consent requirements.  According to this exception:

“An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties, including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.”

In addition, the Department of Education’s Student Privacy Policy Office (“SPPO”) recently issued an instructive FAQ that provides school districts with some guidance on how COVID-19 applies to the “health or safety emergency” exception.

According to the SPPO guidance, law enforcement officials, public health officials, trained personnel and parents are the types of “appropriate parties” to whom student information may be provided in cases of emergency.  However, there must be a specific emergency to enable a school district to disclose student information and not merely a generalized threat of danger.

So where does COVID-19 fit in to this?  The FAQ states that if a local public health authority determines that a public health emergency, such as COVID-19, is a significant threat to public safety, an educational agency may determine that an emergency exists as well.  Today, all schools have been closed until at least March 31, 2020, due to the risk of COVID-19 spreading throughout the school and other communities.  Thus, the SPPO’s FAQ seems to suggest that if a school district has knowledge of a particular student having COVID-19, it may typically disclose such information in a limited manner to local health officials under the “health or safety emergency” exception.  Note, however, that in doing so, the school district must make a record of such disclosure.

But can the school district disclose the identity of an infected student to the general school community? Absent a specifically articulated reason, no says the FAQ.  In most situations, a general notice to the school community stating that a student has been infected is sufficient.  The schools should also take precautions so as to not release any information that would lead a reasonable member of the community to identify the infected student.  (This portion of the FAQ appears to apply to situations where the school is open, but its guidance is instructive).

However, the FAQ suggests that the school might be able to identify the infected student if the school can explain that such disclosure was indeed necessary to protect the safety of identified students or members of the community.  As an example, the FAQ states that the school district could identify an infected student if the infected student was involved in sports and came into close contact with other students, thereby risking the spread of the infection.  Here, the FAQ again seems to be applying FERPA’s exception to a time when schools are open. 

But even when schools are closed, school districts may be presented with complex issues involving COVID-19.  For example, a school district may become aware of an infected student and knows that the student socializes closely with other students or is going on a trip with identifiable students or will otherwise be in close proximity with particular students who may thus be exposed to COVID-19.  These questions may not be easily answered, but the schools may find themselves in similar situations where they may have to answer the question of whether it should release, even in a limited manner, the identity of the infected student(s).

Although Connecticut’s schools are currently closed, districts should nevertheless keep the “health or safety emergency” exception in mind as time moves forward.  If districts become aware of an infected student, they must carefully consider the disclosure of such to local health district officials.  Further, there shall eventually come a time when schools will re-open, but that does not mean, necessarily, that the threat of COVID-19 (or another infectious disease in the future) will be past us.  Thus, schools are well-advised to become familiar with this relevant exception to FERPA’s disclosure rules and apply them appropriately.