FERPA: Who Is a 'Student' and What Is an 'Educational Record?'

The Family Educational Rights & Privacy Act (FERPA) was enacted in 1974

to ensure (1) that parents of students, or students over the age of 18 or

attending an institution of post-secondary education, had access to their

education records, and (2) to protect the student's right to privacy by limiting

the transferability and disclosure of educational records without consent. To

have FERPA protection, a document must be an "educational record" of a

"student." A Wisconsin appellate court recently analyzed who is a

"student" under FERPA and what is an "educational record."

In Osborn v. Board of Regents of the University of Wisconsin System,

2001 Wi. App. 209, 634 N.W.2d 563 (2001), Mr. Osborn and the Center for Equal

Opportunity made public record requests to the University of Wisconsin System

for records of applicants and students of its various universities.

Specifically, Osborn sought records relating to standardized test scores, grade

point averages, class rank, extracurricular activities, areas of study, state of

residence, race, sex, and remedial or academic probationary status. Osborn

wanted the documents to assist him in a study on the impact of race, ethnicity,

immigration and other factors on admissions. While the University provided some

documentation to Osborn, it denied many of the requests because of the

University's obligation under FERPA to keep private the educational records of

its students. Osborn sued, claiming that applicants were not students under

FERPA and any personal information could be redacted.

Because FERPA's definition of a student "excludes" a person who has

not been in attendance at such agency or institution," the Wisconsin state

court ordered the University to produce the records of applicants who had not

matriculated. For those who had matriculated, the state court ruled that the

University was not required to remove personally identifiable information about

the enrolled students.

Both sides appealed the decision. The appellate court reviewed the interplay

between the public's statutory right to inspect records made by state agencies

and FERPA's protection of educational records. The court first divided the

requests based on the nature of the applicants: (1) those who did not enroll and

(2) those who did enroll.

For those individuals who did enroll, the court found that grades, test

scores and probationary status, among others, were education records under FERPA

as they were directly related to a student and...