Guidance Regarding Disclosures to the Census Bureau

To Institutions of Postsecondary Education:

The Department of Education has received numerous inquiries from postsecondary institutions regarding the applicability of the Family Educational Rights and Privacy Act (FERPA) to disclosure of information from student education records to the Bureau of the Census for the 2000 Census. This Office administers FERPA and is responsible for providing technical assistance to educational agencies and institutions on the law. 20 U.S.C. § 1232g; 34 CFR Part 99. We are writing to provide you with guidance regarding the disclosure of student information to Bureau of the Census officials.

The attached letter, which this Office prepared for the Census, explains that nothing in FERPA would prevent an institution from disclosing the information being requested by the Census in non-personally identifiable form. That is, an institution may provide census takers with all directory information items except for names of students, provided such information is disclosed on a minimum of several students. This would ensure that the information being disclosed is not personally identifiable to individual students. Thus, institutions could then include the additional information being requested by the Census - race and gender.

Should you have any additional questions, please do not hesitate to call this Office at (202) 260-3887 or email us at FERPA@ed.gov. Additionally, the attached letter is on our newly redesigned Web site at www.ed.gov/offices/OM/fpco/ under "Hot Topics."

Sincerely,

LeRoy S. Rooker
Director
Family Policy Compliance Office

April 27, 2000

Mr. Nunzio Cerniglia
Assistant Regional Census Manager
Bureau of the Census
841 Chestnut Street, Suite 5101
Philadelphia, Pennsylvania 19107

Dear Mr. Cerniglia:

This is in follow-up to our telephone conversation yesterday regarding the applicability of the Family Educational Rights and Privacy Act (FERPA) to the disclosure of certain information from student education records by postsecondary institutions to the Census Bureau (Bureau). In our conversation, you explained that, in order to complete the survey on students who have not returned the census form or provided information to census takers, the Bureau would like to receive information on these remaining students from institutions. Specifically, the Bureau would like to ask that institutions provide them with general directory information--without including any student names--as well as the race and gender of those remaining students. As explained more fully below, nothing in FERPA would prevent a school from providing the above-requested information to the Bureau provided that an institution discloses directory information (without the names), race, and gender on a minimum of several students. This Office has historically advised educational agencies and institutions that FERPA does not prohibit them from disclosing information in non-personally identifiable form to an outside party that has requested that information.

FERPA is a Federal law that protects a student's privacy interest in his or her "education records." The term "education records" is broadly defined as:

[T]hose records, files, documents, and other materials, which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.

20 U.S.C. § 1232g(a)(4). See also 34 CFR §99.3 "Education records." FERPA provides that education records, or personally identifiable information from such records, may be disclosed by educational agencies and institutions only after obtaining prior written consent of the eligible student, except in several specified circumstances. 20 U.S.C. § 1232g(b)(1) and (d). See also 34 CFR § 99.30.

Section 99.3 of the regulations defines "personally identifiable information" as information that includes but is not limited to:

1. the student's name;
2. the name of the student's parent or other family member;
3. the address of the student or the student's family;
4. a personal identifier, such as the student's social security number or student number;
5. a list of personal characteristics that would make the student's identity easily traceable; or
6. other information that would make the student's identity easily traceable.

As noted above, FERPA generally prohibits the nonconsensual disclosure of personally identifiable information derived from education records, except in certain circumstances. 20 U.S.C. § 1232g(b); 34 CFR § 99.31. Accordingly, if one or more of the exceptions are met, an educational agency or institution may disclose education records, or personally identifiable information from education records, without prior written consent. One exception to the general prior consent rule is the nonconsensual disclosure of information derived from education records that has been appropriately designated as "directory information" by the educational agency or institution. 20 U.S.C. § 1232g(b)(1); 34 CFR § 99.31(a)(11).

FERPA defines "directory information" as information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed. 20 U.S.C. § 1232g(a)(5); 34 CFR § 99.3 "Directory information." Directory information could include, but is not limited to, information such as name, address, telephone number, date and place of birth, participation in officially recognized activities and sports, and dates of attendance. However, information such as race, gender, or social security numbers cannot be designated as directory information because disclosure of such information would be considered an invasion of privacy. FERPA provides that a school may disclose directory information if it has given public notice of the types of information which it has designated as "directory information," the student's right to restrict the disclosure of such information, and the period of time within which a student has to notify the school in writing that he or she does not want any or all of those types of information designated as "directory information." 20 U.S.C. § 1232g(a)(5)(B); 34 CFR § 99.37(a).

In our telephone conversation, we discussed ways in which postsecondary institutions could assist the Bureau in completing its survey of students. One way would be for institutions to disclose properly designated directory information to census takers. However, as noted previously, race and gender cannot be designated and thus included in directory information. As we discussed, another way that institutions could assist the Bureau is to provide census takers with all directory information items except for names of students, provided such information is disclosed on a minimum of several students. This could ensure that the information disclosed is not personally identifiable. Institutions could then include information on the students' race and gender. You indicated that providing census takers with the directory information including race and gender in a non-personally identifiable format would provide the Bureau with the information that it needs.

In sum, this Office has advised postsecondary institutions that they may — to the extent allowed by FERPA — provide information to and cooperate with 2000 census takers. This may include disclosing properly designated directory information on those students to census takers, as well as distributing census forms to the student population. In our conversation yesterday, you indicated that the Bureau does not need the students' names from the institutions in order to generate the information necessary to complete the census survey. Therefore, institutions also may disclose directory information items without student names, provided that the institution is disclosing the directory information (without names) of a minimum of several students, and include the additional information on race and gender. We will include this guidance on our Web site (www.ed.gov/offices/OM/fpco/) under "Hot Topics" in a further effort to encourage schools to cooperate with census takers in this manner.

I trust that the above will be helpful in assisting the Bureau in completing the Census 2000.

Sincerely,

LeRoy S. Rooker
Director
Family Policy Compliance Office

Mr. Philip Freije
Chief Counsel
Bureau of the Census

Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-4605