RAQs: Recently Asked Questions

Topic: Unsealed overdue notices and FERPA - 4/3/2020
I am wondering if sending unsealed overdue notices to students in their classrooms is a FERPA viol...
Posted: Friday, April 3, 2020 Permalink

MEMBER QUESTION

I am wondering if sending unsealed overdue notices to students in their classrooms is a FERPA violation. The notices might appear face up on their desks or in their hands for other students to see. The prices of overdue materials are listed on our notices. Another issue - is calling a student's home and leaving a message stating that they have an overdue book and giving the price of the book a FERPA violation? Thank you.

WNYLRC ATTORNEY'S RESPONSE

What a difference a month makes.  When this question came in, my kids were in school, my staff was at the office…and I am willing to bet at least one person in that group had an overdue library book.

Now, of course, we are all home trying to “flatten the curve” of a global pandemic.  If we had overdue books before, they might be overdue for a bit longer.[1]

Despite a global shift in focus since this submission, it is still a good one, and the second question may be more urgent than ever.

The FERPA fundamentals impacting this question were addressed in an “Ask the Lawyer” last year: https://www.wnylrc.org/ask-the-lawyer/raqs/80.

With that as background,[2] here are my answers:

Is sending unsealed overdue notices to students in their classrooms a FERPA violation?

Unless there is a specific waiver or request for the information, unsealed notices distributed in classrooms risks both a FERPA violation, and a violation of CPLR 4509.

Sealing the notices so the contents can’t easily be seen by people who aren’t the students or their legal guardians is a good idea.

 

Is calling a student's home and leaving a message stating that they have an overdue book and giving the price of the book a FERPA violation?

Unless the student requests it, or a policy states that such a practice is for the proper operation of the library, a message reciting library records to a home phone answering machine risks a violation of CPLR 4509.[3]  If the student is under 18, it is not a FERPA violation—so long as the home answering machine is that of the child’s legal guardians—but as reviewed here, FERPA is not the only privacy law a school library in New York must follow.

Lost in a sea of law and regulations?  When considering the implications of FERPA and CPLR 4509 for a school library, seeking solutions that err on the side of privacy is always the safest course.   While applying the letter of the law can be frustrating, a default prioritization of privacy will almost always carry the day.[4]

Thanks for a thoughtful question.  At times of de-stabilization and change, focusing on the principles that guide us—like a commitment to providing access to information along with assured privacy—can bring calm.



[1] Many thanks to the Buffalo and Erie County Public Library for automatically renewing our books!

[2] Intricate, complex, and possibly unsatisfying background!

[3] I like this 2009 guidance from the New York Committee on Open Government on the nuances of CPLR 4509: https://docs.dos.ny.gov/coog/ftext/f17671.html

[4] If health and safety are in seeming conflict with privacy, that is a good time to do a quick check-in with a lawyer.

Tags: COVID-19, Emergency Response, FERPA, Privacy

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