Ark. Attorney General interprets FERPA, says federal law doesn't require closure





ARKANSAS — The federal law known as the Buckley Amendment does not permit a school board to go into a closed session to discuss the educational records of a former student, Arkansas Attorney General Winston Bryant wrote.

In his October 16 opinion, Bryant wrote that unless the executive session is intended to discuss an employment matter or to hear the appeal of a suspension or expulsion decision, it must be open to the public under the Arkansas Freedom of Information Act.

The Attorney General added that public schools in the state face difficult decisions in similar matters due to a discrepancy between the state’s freedom information act and federal law.

The Buckley Amendment, formally known as the Family Educational Rights of Privacy Act, allows the Department of Education to deny funding to educational institutions that have “a policy or practice” of permitting the release of “education records” of students without their consent or without that of their parents for minors.

Attorney General Bryant wrote, “Because the federal act does not expressly prohibit the release of the records or information, but only withholds federal funds…the federal act ‘neither qualifies as an exemption under [the state open records law] nor supersedes the act under the supremacy clause.’”

The Attorney General noted that this potential conflict might be a matter for the legislature to decide.


reports, Spring 1998