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| FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT SUBPOENA COMPLIANCE MEMORANDUM The Commonwealth of Massachusetts OFFICE OF THE GENERAL COUNSEL TO: Deans/Vice Presidents of Student Services FROM: Kenneth A. Tashjy, Staff Attorney DATE: May 15, 1997 RE: Production of Educational Records in Response to a Subpoena Most recently this office has experienced a dramatic increase in the number of inquiries from Colleges regarding the release of student educational records pursuant to a subpoena or other judicial order. Specifically, what type of notice must be given to a student whose records are the subject of a subpoena and what compliance time frame is appropriate? As you are aware, when a College is served with a subpoena commanding the production of certain educational records, the Family Educational Rights and Privacy Act (FERPA) requires that the College make a reasonable effort to notify the student whose educational records are the subject of the subpoena or judicial order. Thereafter, it is the student’s responsibility to seek a protective order or other legal relief if the student opposes the release of his/her records. Further, while FERPA provides no specific time frame for responding to a subpoena after notice is given to a student, it is reasonable to inform a student that if the College does not receive a court order directing it to do otherwise, it will comply with the subpoena after seven business days. It is also important to note that FERPA only requires compliance with a “lawfully issued” subpoena or court order. While lawfully issued subpoenas may vary in form, all must be issued and signed by a court clerk, a notary public, or a justice of the peace. Further, the contents should include: a civil action or criminal docket number, the specific date and time of the court appearance, the identity of the issuing party or attorney, and an acknowledgement that notice has been conveyed to counsel for the opposing party. If you have any questions as to the sufficiency of a subpoena, you should consult with our office. Attached please find a standard student notification letter we have prepared for your use. It is our hope that this letter will provide a consistent approach among the Colleges regarding student notification and the production of educational records pursuant to a subpoena or court order. If you have any questions regarding this matter, please do not hesitate to contact the Community College Counsel’s Office. RECORDS SUBPOENA FERPA NOTIFICATION LETTER To be sent by certified mail Dear [student]: On [date] the College was served with a subpoena commanding it to produce certain educational records of yours in its possession. A copy of the subpoena is enclosed describing the records sought and the legal action or proceeding to which it relates. Pursuant with the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232(g), with regulations at 34 C.F.R. 99, and the Fair Information Practices Act (FIPA), Mass. General Laws, Chapter 66A, Section 2(k), the College is notifying you in advance of its intent to comply with this subpoena so that you may have the opportunity to seek a protective order or other legal relief concerning the disclosure of these records. According to both FERPA and FIPA, before an educational institution releases student educational records or personal data in its possession, pursuant to a lawfully issued subpoena, the educational institution must first put the subject of the subpoena on notice of its receipt of the subpoena and afford the subject a reasonable period of time in which to seek a court's intervention to block the release of the records sought. In order to comply with the attached subpoena, while maintaining compliance with both state and federal law, please be on notice that the College intends to forward to the requesting party the educational records and/or personal data specified in the subpoena, unless within seven (7) business days from the date of this letter the College receives a court order directing it not to release the records. If the College receives no such court order, or notice of a pending hearing, it will release the information on _____________, 200__. It is your responsibility to seek appropriate judicial relief in order to prevent the disclosure of the requested records. If you have any questions regarding this matter, please do not hesitate to contact me at ________________.
[College Official] cc: [Attorney requesting the records]
RE: ___________________ v. ___________________ My office serves as legal counsel for Massachusetts' fifteen Community Colleges, including, ________________ Community College. On (day), (date), 200___, at approximately (time), the College was served with a Keeper of Records subpoena requesting the production of educational records pertaining to (student’s name). Your subpoena requests that the records be produced in Probate Court on (date), 200___. Please be advised that the College cannot comply with your subpoena's production deadline due to limitations placed on it pursuant to the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232(g), with regulations at 34 C.F.R. 99, and the Fair Information Practices Act (FIPA), M.G.L., c.66A, Section 2(k). Specifically, FERPA requires that before an educational institution releases student educational records pursuant to a lawfully issued subpoena or court order, the educational institution must first make a "reasonable effort to notify" the student of its receipt of the subpoena or court order "so [the student] may seek protective action ... ." Section 99.31(9)(i)(ii). Failure by the College to comply with FERPA may result in a violation of federal law and jeopardize the College's federal funding. Further, pursuant to FIPA, M.G.L., c.66A, Section 2(k), an educational institution in the Commonwealth must “maintain procedures to ensure that no personal data (including student record information) are made available in response to a demand for data made by means of compulsory legal process, unless the data subject has been notified of such demand in reasonable time that he may seek to have the process quashed.” A violation of FIPA may result in civil liability. Accordingly, in order to comply with a subpoena
for student records, while maintaining compliance with both state and
federal law, it is the prudent practice of the Commonwealth's Community
Colleges to provide the subject of a subpoena with a copy of the subpoena
and notice that the records requested will be released unless within seven
(7) business days from the date of the notice the College receives a court
order directing it to do otherwise. If neither a court order, nor a notice
of hearing, is received within the specified time frame, the College will
release the requested records forthwith in compliance with the subpoena.
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