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Under the new DOE rule, schools and colleges would be directed to deny a request under state open-records law for a document — even if all of the identifying information about a student has been removed — if the school reasonably believes that the requester knows, or can figure out, the students to whom the document pertains.

The new rules were published in the Dec. 9, 2008, edition of the Federal Register and are set to take effect Jan. 8, 2009, less than two weeks before the end of the Bush administration.

The rules explain how the DOE will interpret and apply the Family Educational Rights and Privacy Act (FERPA), also known as the Buckley Amendment. Congress enacted FERPA to penalize schools that fail to enact policies to safeguard against disclosure of personally identifying "education records" such as attendance records and transcripts. Schools that violate FERPA can lose federal education funding, although no school has been so penalized in the 34-year history of the statute.

DOE is the agency that is charged with implementing FERPA. However, its interpretation of FERPA is not conclusive and can be overturned by a court if the agency's rule conflicts with, or is unsupported by, an act of Congress.

It is common practice for members of the public or media to ask for "redacted" public records — records from which the names, addresses and other identifying personal information have been removed — to find out statistical information about everything from discipline to graduation rates. The new rule will make it more difficult to obtain redacted public records.

DOE is making two related changes to FERPA that drew fire from open-government advocates. Under the new rule, an otherwise-public record will be considered confidential even if it contains no names, Social Security numbers or other individual identifiers, if the record is "linked or linkable to a specific student" so that a person could figure out the student's identity "with reasonable certainty," or if the educational institution reasonably believes that the requester already knows the identity of the student to whom the documents relates.

As published Dec. 9, the rule is broader than when it was circulated for public comment earlier this year. The initial draft said that redacted records would be confidential if a person's identity could be determined by people in the community. But the final regulation says that a redacted record is confidential if a person's identity could be determined by people in the school — so that, in DOE's view, a record about an incident not well-known to the public but known to people within the school will become confidential.

In its Federal Register posting, the DOE said that its rules would prevent a school from confirming that an unnamed student was disciplined for bringing a gun to campus: "For example, it might be well known among students, teachers, administrators, parents, coaches, volunteers, or others at the local high school that a student was caught bringing a gun to class last month but generally unknown in the town where the school is located. In these circumstances, a school district may not disclose that a high school student was suspended for bringing a gun to class last month, even though a reasonable person in the community where the school is located would not be able to identify the student, because a reasonable person in the high school would be able to identify the student."

The Student Press Law Center, the Society of Professional Journalists and the National Education Writers Association were among the groups questioning the need for broadening FERPA confidentiality and cautioning that the statute already is being widely abused by schools and colleges to conceal such information as audit reports of college programs and travel records of athletic teams. The FERPA statute and rules have been amended several times to deal with instances of over-compliance by educational institutions, to clarify that such documents as student parking tickets or police arrest reports are not confidential "education records."

Rejecting these protests, the DOE stated in the Federal Register publication that "FERPA is not an open records statute or part of an open records system," so DOE need not consider whether its interpretation of FERPA contravenes the public's interest in accountability of government agencies. DOE also said it would recognize no exception to confidentiality even if the person to whom the document pertains has voluntarily revealed her own identity to the media: "The fact that a matter is of general public interest does not give an educational agency or institution permission to release the same or related information from education records without consent."

The FERPA revisions also make a number of less-controversial changes to DOE's interpretation of the statute, including clarifying that documents pertaining solely to a person's activity as an alumnus are not "education records" that must be kept confidential.

The Dec. 9 Federal Register posting is viewable here.