Submission Date:
Question:
My institution has a small number of documents in our archives related to previous graduate students. Some are definitely educational records (transcripts, field placement evaluations). Then there are a) letters of recommendation received by the school or written by school faculty/administrators and sent to other schools, b) some correspondence between a student and the school/administration, and other items like c) copies of images or articles from student publications.
The documents span decades. Most --- but not all--- of these former students are confirmed deceased. Most items in this small group of documents relate to alumni who were/are notable, but in widely varying degrees.
A few of these documents concern a famous alum, who passed away. An outside researcher is asking about the documents related to that alum, and unfortunately, there are no surviving institutional access policies related to student records or unpublished correspondence in our archives. We want to respect copyright, FERPA, and the alum's estate.
For the educational records, I can't find clear guidance on how long FERPA access restrictions last, but other academic collections seem to allow access 50-75 years after the former student's death.
So, a few questions:
1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?
2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?
Answer:
I am always fascinated by the transformation documents can undergo, simply by operation of law, circumstance, or time. For instance:
- Documents that are "education records" under FERPA can become simply "records," or "nothing" once the person to whom they pertain has died.[1]
- Documents that are "private information" under New York's new(ish) SHIELD Act[2] are no longer controlled by the Act if the digital copy is swapped for a copy on paper.
- Documents that use the "name and likeness" of a deceased performer, currently allowed, will be far more restricted when New York's new Civil Rights Law 50-f, which requires written permission for certain commercial uses, goes into effect on May 29th, 2021.[3]
And of course, documents can be "in" copyright, and "out" of copyright, or restricted due to medical content, or under terms of non-disclosure...restrictions that can shift based on any number of factors.
An educational institution considering levels of access and use of student-related documents[4] has to consider not only these legal factors, but their unique policies. Factor in fame,[5] and the stakes get even higher.
Because of that complexity, I could muse/write/talk on this topic for hours. But let's focus on the member’s specific questions:
1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?
If a former student is not deceased, there can be NO release of FERPA-protected education records to otherwise barred parties without written, dated consent.
If the former student is known to be deceased—or the passage of time suggests they might be deceased—then the records are no longer protected by FERPA, and that restriction no longer applies.
But as the member points out, there are other considerations.
2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
This is an interesting question because unless the records we're talking about ("related to former students") only contain "directory information,”[6] then they are by definition "education records" under FERPA.[7] That is because the FERPA is intentionally expansive. So old bills, dusty admissions files, and antiquated (but often fascinating) "administrative" records, although not "educational," per se, are still barred from release by FERPA if they relate directly to a student.[8]
BUT, as this question implies, FERPA isn't the only thing that could bar or restrict access to old records. Copyright, privacy laws, and general prudence are all good reasons to not release institutional records unless there is a policy and process for doing so (like a policy for sending transcripts to future employers), or your institution is compelled to release them (like a judicial order or subpoena).
So, while a student will always have access to their records under FERPA, both former students and third parties should by default be barred from access or obtaining copies to records they are not entitled to.
Which brings us to:
3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?
Many, but not all, educational institutions have internal archives—not formal "Archives" they hold in trust for the public (like the W.E.B. DuBois papers at University of Massachusetts),[9] but rather, materials they regard as important pieces of their institution's history and identity, so deliberately retain.
For some, this may be a complex and far-reaching catalog of institutional history. For others, it may be simply hanging onto every program for every graduation ceremony. And of course, for many, it will be special handling of any material that is related to famous or noteworthy alumnae.
Whether formal and well-funded, or informal and not funded,[10] every educational institution's internal archive should have a policy that covers: 1) that the archive exists to transition material from "records" into "archives;" 2) how those materials are selected; 3) how those archival materials are to be preserved; 4) how the archival materials are used and accessed internally; 5) how the archival materials are used and accessed externally; 6) the ethical standards and institutional values being applied in the overall operation of the archive. [11]
If an educational institution has in-house records of such magnitude that they warrant being their own archive (for instance, the Eqbal Ahmad papers at Hampshire College), yes, the development of that archive could warrant its own separate policy. In that case, unique care would have to be taken to consider not only FERPA, but privacy laws, copyright (the author of an admissions letter is the copyright owner of that admissions letter...not the institution the letter was sent to, even if the institution retains the only physical copy).
All that said, the end result need not be "risk-averse," so much as "risk-informed:" carefully assessing all the compliance concerns and risks,[12] how does an institution create an archive that suits its stated purpose and conforms to institutional ethics? Until an institution is confident it has reached the right answer, access to third parties should not be granted, and only need-to-know access should be granted to those within the institution.
I would like to thank the member for this question, it is a good one. And I think we may have reached a new milestone at "Ask the Lawyer"—a reply where the footnotes are as long as the reply!
Thanks. I wish you a well-resourced and culturally rich archive, and continue positive alumnae relations.
[1] See letter of LeRoy Rooker, Director, Family Policy Compliance Office, U.S. Department of Education letter of Date, found at https://studentprivacy.ed.gov/sites/default/files/resource_document/file/LettertoConnecticutStateArchivistRegardingEducationRecordsMay2008.pdf as of February 10, 2021, re-affirming "that the FERPA rights of “eligible students” lapse or expire upon the death of the student based on common law of privacy rights." [NOTE: This link was confirmed as no longer active and removed on 02/25/2022 as part of the routine review of "Ask the Lawyer" materials.]
[2] Text for this law can be found at: https://www.nysenate.gov/legislation/bills/2019/s5575.
[3] I am writing this on February 10, 2021.
[4] This "Ask the Lawyer" answer does not address the issue of yearbook photos and student-generated art or academic work. For that, see RAQ #108 and RAQ #91.
[5] What is "fame?" It's a notion that is taking odd journeys these days. As I said in footnote #3, I am writing this on February 10, 2021. Jockeying with the impeachment proceedings for "fame" on the cover of today's digital New York Times: an article about a lawyer who appeared in virtual court as a cat. I bet he can't wait for his 15 minutes to be over.
[6] "Directory information" includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.
[7] Here is the actual definition: "...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."
[8] There are exceptions to this, of course...one big one being the records of campus police.
[9] I value this archive because it has letters between W.E.B. DuBois and Mary Talbert, a Buffalo resident who was a stalwart organizer for civil rights and, on the side, historic preservation (she led the effort to save the house of Frederick Douglass). I read her letters when I need a shot of pragmatic inspiration.
[10] Some "archives" exist because some wonderful employee couldn't bear to see institutional history thrown out, and they got permission to buy some boxes and put the "archives" in the storage closet.
[11] The "Ask the Lawyer" from November 4, 2020 has more about ethical considerations for archival projects: RAQ #178.
[12] For this question, "risk" is not just legal risk, but relational and reputational risk, too. After all, it might be legal to share a harsh evaluation from a thesis committee related to the work of a long-dead student...but is there value in doing it? (Of course, there might be). Knowing why something is in the archive, and having full confidence in that reason, is just as important as preserving the record in the first place.
Tag:
Academic Libraries, Archives, Copyright, Digitization and Copyright, FERPA, Privacy
