A parent walks into the library and asks to review her/his child’s school library records. Do you share them? Quick…what is the answer? The parent is waiting (and growing irate!).
State laws and school policies vary, but probably the safe answer is: “If you wish to review your child’s library records, please submit a written request for access through the school office.” Oh, you were expecting a yes or no answer? Unfortunately, it is no where near that clear. State laws and local board policies may provide different levels of access in different districts. With student privacy involved, it is probably best to pause and have the request come through official channels.
I am not a lawyer, and this is not legal advice, however…here is some information to muddy clarify the issue.
Privacy of student records is a Federal issue. It is addressed in FERPA - the Family Educational Rights and Privacy Act. In brief, the law states that if the student is younger than 18 years of age, then the parent has a right to “inspect and review the student’s education records maintained by the school.” Of course, as with most statements these days, you have to add in the usual * leading to the cover-all phrase some restrictions may apply. For example, if the student is 18 or older, the right to review records and control access to the records shifts to the student. Without the student’s permission, FERPA actually denies parents access to the records by default. Note as well, that FERPA authorizes the release of records without any parental or student 18 or older permission to “School officials with legitimate educational interest” as well as others. If a principal asks for student loan records as part of an official investigation, the librarian probably has to provide them.
But wait, does this even matter? Are library records actually “education records” that have to be disclosed?
In 2005, the LibraryLaw Blog wrote a post questioning whether library records are in fact education records. Their initial conclusion: “Library records are not specifically listed either in the definition of “education records” within the law or its explanatory materials.”
However, the definition in FERPA is exceedingly broad.
“Education records”
(a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.
(b) The term does not include:
(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.” [FERPA]
One could read this either way. Library records certainly are “directly related to the student” and are “maintained by an educational agency.” But could it also be argued that they are “used only as a personal memory aid”? The problem, in my non-lawyer opinion that is not trying to make any sort of legal statement, is that library records are usually not “kept in the sole possession of the maker.” Does a library aide have access? Parent volunteers that circulate books? Student helpers who scan books in and out? A network technician? A School Library System? Can electronic records stored on a server even be considered to be in the “possession” of the maker?
A commenter to the LibraryLaw Blog post wrote the Family Policy Compliance Office (FPCO), the government office that handles FERPA, to ask for clarification. Their answer to the question of whether or not K-12 school library records are educational records that must be handled under FERPA:
“In the circumstances you describe, if the records are maintained by a public school or district, and are able to be identified by student, then we’d probably consider them to meet the qualification of FERPA as education records. [FCPO being Quoted]”
Additional clarification:
“FERPA prohibits the destruction of education records while there is an outstanding inspection request from the parent to review those particular records. FERPA is otherwise silent concerning the destruction of education records.
Our response is not changed because the physical location of an education record does not affect its inclusion as an education record. As well, there is no FERPA concept of “permanent” record or “transient” record. [FCPO being Quoted]”
From this, I cannot help but think that if a challenge were moved forward a district would probably be forced to provide a parent access to the library records of their student under the age of 18. Please don’t interpret this as my being soft on the issue of privacy, but rather as me speaking a bit more from a school administrator perspective. If privacy could be granted, I would love to grant it. However, having not found any case-law specifically resolving this one way or the other, my reading of FERPA’s broad definition suggests that library records would probably be considered education records that must be released given an official request.
ALA, despite their hard line stance on privacy of library records, acknowledges that schools face additional challenges and may not be able to protect students’ privacy. “School libraries operate as part of larger educational structures. In some cases school systems may create policies and procedures that infringe on students’ rights to privacy. School library personnel are encouraged to educate all policy makers about the dangers of abridging students’ privacy rights.[ALA]”
This is the reason for the ongoing debate over libraries maintaining student loan information. Even though it is an incredibly valuable source of data for analysis and collection development, there are great concerns that parents or school administrations will use the data against students. This is why the best compromise is to store the student loan data with no identifying information and no way to reverse the process to attach loans to students. It is important to note as well that this position is directly supported by FERPA. “Schools are not required by FERPA to: Create or maintain education records;” If you have no records because student loans are transferred to a common data pool with no identifying information and then purged as soon as the book is returned, then you have nothing to give to parents. If you do keep records, however, you cannot purge them after a request for information has been submitted.
Short answer? If a parent of a child under 18 is asking, you probably have to give up the records as much as it hurts to do so. However. And this is very important. Your best answer given the legal confusion about this issue is to be aware of district policies and procedures for this and to gently explain to the parent that he or she will need to submit a request through the school administration so that the request can be properly addressed.
