Current through September 18, 2024
Authority: IC 20-19-2-8; IC 20-19-2-16
Affected: IC 20-19-2; IC 20-33-7-3; IC 20-35
Sec. 1.
(a) The
public agency must annually notify, in writing, parents of students currently
in attendance, or students of legal age currently in attendance, of their
rights regarding confidentiality of personally identifiable information. The
notice must inform parents or students of legal age that they have the right to
the following:
(1) Inspect and review the
student's educational record with respect to the:
(A) identification, evaluation, and
educational placement of the student; and
(B) provision of a free appropriate public
education to the student.
(2) Seek amendment of the student's
educational record that the parent or student of legal age believes to be:
(A) inaccurate;
(B) misleading; or
(C) otherwise in violation of the student's
privacy rights.
(3)
Consent to disclosures of personally identifiable information contained in the
student's educational record, except to the extent that this rule authorizes
disclosure without consent.
(4)
File a complaint concerning the public agency's alleged failure to comply with
the requirements of this rule.
(b) The written notice must include the
following:
(1) The procedures for the
following:
(A) Exercising the right to
inspect and review educational records.
(B) Requesting an amendment of educational
records.
(2) The
criteria for determining:
(A) who constitutes
a public agency official; and
(B)
what constitutes a legitimate educational interest, if the public agency has a
policy of disclosing educational records to other public agency officials who
have been determined to have a legitimate educational interest.
(c) The public agency:
(1) may provide the written notice by any
means reasonably likely to inform the parents or students of legal age of their
rights; and
(2) must effectively
notify:
(A) parents of students with
disabilities;
(B) students of legal
age with disabilities; or
(C)
parents who have a primary or home language other than English.
(d) The right to
inspect and review educational records includes the right to:
(1) a response from the public agency to
reasonable requests for explanations and interpretations of the educational
record;
(2) have other arrangements
made to inspect and review a requested educational record or to receive copies
of the educational record from the public agency if the failure to provide
those copies would prevent the parent or student of legal age from exercising
the right to inspect and review the educational record;
(3) have a representative of the parent or
student of legal age inspect and review the educational record; and
(4) receive a copy of the student's
educational record from the public agency for use in a pending due process
hearing.
(e) A public
agency must permit the parent, or parent's representative, to inspect and
review any educational record of the parent's children from birth to eighteen
(18) years of age that are collected, maintained, or used by the public agency
as described in this rule. All rights under this rule transfer from the parent
to the student of legal age, as defined in
511 IAC
7-32-91, when the student has reached eighteen (18)
years of age and not had a guardian appointed.
(f) The public agency must permit a custodial
and noncustodial parent to inspect and review the student's educational record
unless the public agency has received actual written notice that a court order
has terminated or restricted the parent's authority to access the student's
educational record under applicable state law governing matters, such as, but
not limited to, the following:
(1)
Guardianship.
(2)
Separation.
(3) Divorce.
(4) Custody.
(g) The public agency must comply with a
request from a parent or student of legal age to inspect and review the
educational record:
(1) without unnecessary
delay;
(2) before any meeting
regarding:
(A) an IEP;
(B) an interim alternative educational
setting; or
(C) a manifestation
determination;
(3) prior
to:
(A) a resolution session;
(B) a due process hearing; or
(C) an expedited due process hearing;
and
(4) in no case more
than forty-five (45) calendar days after the request is made.
(h) The public agency may charge a
fee for copies of educational records, unless the requested record is a copy of
a student's educational evaluation report or IEP, which must be provided at no
cost to a parent or student of legal age, including a parent of a student or
student of legal age who attends a nonpublic school. Fees for copies must not:
(1) exceed actual cost of duplication;
or
(2) be charged if doing so
effectively prevents the parent or student of legal age from exercising the
right to inspect and review the educational record.
The public agency may not charge a fee to search for or to
retrieve information under this rule.
(i) If an educational record includes
information on more than one (1) student, the parent or student of legal age
has the right to:
(1) inspect and review only
the information relating to the parent's child or student of legal age;
or
(2) be informed of that specific
information.
(j) The
public agency must maintain a record of each request for access to and
disclosure of personally identifiable information from the educational record
of each student, except when the disclosure has been by or to any of the
following:
(1) A parent or student of legal
age.
(2) A party with written
consent from the parent or student of legal age.
(3) A party seeking directory
information.
(4) An authorized
public agency official.
(5) A party
receiving the record pursuant to a lawfully issued subpoena or other court
order specifically stating that the following will not be disclosed:
(A) The existence and contents of the
subpoena or other court order.
(B)
The information furnished in response to the subpoena or other court
order.
(k)
The record of access and disclosure must:
(1)
be maintained with the educational record as long as the educational record is
maintained; and
(2) include:
(A) the name of the person who has requested
or received personally identifiable information from the educational
record;
(B) the purpose of the
party in requesting or obtaining the information; and
(C) the date of disclosure of the
information.
(l) If the public agency discloses personally
identifiable information with the understanding that the party receiving the
information may make further disclosures on behalf of the public agency in
which prior consent is not required, the record of disclosure must include the
following:
(1) The names of the additional
parties to which the receiving party may disclose the information on behalf of
the public agency.
(2) The purpose
of each of the additional parties in requesting or obtaining the
information.
(m) The
public agency, upon request of a parent or student of legal age, must provide a
list of the types and locations of educational record:
(1) collected;
(2) maintained; or
(3) used;
by the public agency.
(n) If a student transfers from one (1)
school to another, the public agency's transmission of any of the student's
educational record must include the following:
(1) The student's current IEP.
(2) Any disciplinary records relative to a
suspension or an expulsion.
(o) When the public agency reports a crime
committed by a student with a disability, the public agency must ensure that
copies of the education and disciplinary record of the student are transmitted
only to the extent the transmission is permitted by the Family Educational
Rights and Privacy Act (which includes requiring the receiving authorities to
certify in writing that the records will not be disclosed to any other parties)
and as required by IC 20-33-7-3, without the prior written consent of the
parent or the student of legal age for consideration by the appropriate
authorities to whom it reports the crime.
(p) Except as specified in subsection (o),
(q), or (r), written and dated consent of the parent or student of legal age
must be obtained before personally identifiable information is disclosed to
anyone other than the parent, student of legal age, or authorized public agency
officials, or before the information is used for any purpose other than those
specified in this rule. The consent must specify the following:
(1) The record that may be
disclosed.
(2) The purpose of the
disclosure.
(3) The person or class
of persons to whom the record may be disclosed.
(q) Parental consent is not required before
personally identifiable information is released to officials of other agencies
or institutions for purposes of meeting a requirement of this article, except
as follows:
(1) Parental consent, or the
consent of a student of legal age, as defined in
511 IAC
7-32-17, must be obtained before personally
identifiable information is released to officials of participating agencies
providing or paying for transition services in accordance with
511 IAC
7-43-3.
(2) If a student is enrolled or is going to
enroll in a nonpublic school that is not located in the student's school
district of legal settlement, parental consent must be obtained before any
personally identifiable information about the student is released between
officials from the:
(A) public agency where
the nonpublic school is located; and
(B) school district of legal
settlement.
(r) The public agency may allow access to, or
disclose information from, an educational record without consent of the parent
or student of legal age under any of the following conditions:
(1) The disclosure is to authorized public
agency officials within the agency, including teachers, whom the agency has
determined to have legitimate educational interests.
(2) The disclosure is to officials of another
public agency or institution of postsecondary education where the student is
enrolled, or intends to enroll, subject to the following:
(A) The public agency must make a reasonable
attempt to notify the parent or student of legal age at the last known address
of the parent or student of legal age, unless the:
(i) disclosure is initiated by the parent or
student of legal age; or
(ii)
annual notice in subsection (a) includes notice that the agency forwards
educational records to another public agency or institution that has requested
the records and in which the student intends to or has enrolled.
(B) The public agency must provide
the following:
(i) Upon request of the parent
or student of legal age, a copy of the disclosed record.
(ii) At the request of a parent or student of
legal age, the opportunity for a hearing as described in section 2(c)
of this rule.
(C) Notwithstanding clause (A), an Indiana
public agency where the student was previously enrolled must take reasonable
steps to promptly respond to a request from the student's new school, public or
nonpublic, for the student's educational records.
(3) The disclosure is to authorized
representatives of:
(A) the Comptroller
General or Attorney General of the United States;
(B) the Secretary of the United States
Department of Education; or
(C)
state and local education authorities;
in connection with an audit, evaluation, or accreditation of
federal or state supported education programs, or for the enforcement of, or
compliance with, federal or state legal requirements related to those
programs.
(4)
The disclosure is in connection with financial aid for which the student
applied or which the student has received, if the information is necessary for
such purposes as:
(A) determining:
(i) eligibility for financial aid;
(ii) the amount of financial aid;
or
(iii) the conditions for the
financial aid; or
(B)
enforcing the terms and conditions of the financial aid.
For purposes of this section "financial aid" means a payment
of funds provided to an individual or a payment in kind of tangible or
intangible property to the individual that is conditioned on the individual's
attendance at an educational agency or institution.
(5) The disclosure is to a state
or local juvenile justice agency for the purposes set forth in IC
20-33-7-3.
(6) The disclosure is to
an organization, such as federal, state, or local agencies or independent
organizations conducting a study for or on behalf of federal or state education
agencies or institutions for any of the purposes listed in this subsection,
providing the organization protects the confidentiality of the educational
record and destroys all copies in its possession when the record is no longer
needed for the purpose for which the study was conducted. Acceptable purposes
of studies under this subsection are:
(A)
developing, validating, or administering predictive tests;
(B) administering student aid programs;
or
(C) improving
instruction.
(7) The
disclosure is necessary to comply with a judicial order or lawfully issued
administrative or judicial subpoena, provided the public agency makes a
reasonable effort to notify the parent or the student of legal age of the order
or subpoena in advance of the disclosure, so that the parent or student of
legal age may seek protective action, unless the disclosure is in compliance
with:
(A) a federal grand jury subpoena and
the court has ordered that the existence or the contents of the subpoena or the
information furnished in response to the subpoena not be disclosed;
or
(B) any other subpoena issued
for a law enforcement purpose and the court or other issuing agency has ordered
that the existence or the contents of the subpoena or the information furnished
in response to the subpoena not be disclosed.
(8) The disclosure is to the court where the
public agency has initiated legal action against the parent or student. The
disclosure of a student's educational records relevant to the public agency's
legal action may occur without a court order or subpoena, but the public agency
must take steps to seal the record in the legal action.
(9) The disclosure is to the court when a
parent or student of legal age initiates legal action against a public agency.
Disclosure of a student's educational records relevant for the public agency to
defend itself may occur without a court order or subpoena.
(10) The disclosure is to appropriate parties
in a health or safety emergency if knowledge of the information is necessary to
protect the health and safety of the student or other individuals. Nothing in
this rule prevents a public agency from:
(A)
including in the educational record of a student appropriate information
concerning disciplinary action taken against the student for conduct that posed
a significant risk to the safety or well-being of:
(i) that student;
(ii) other students; or
(iii) other members of the school community;
or
(B) disclosing
appropriate information maintained:
(i) in
clause (A) to teachers and school officials within the public agency who the
public agency has determined have legitimate educational interests in the
behavior of the student; or
(ii)
under clause (A) to teachers and school officials in other schools who have
been determined to have legitimate educational interests in the behavior of the
student.
(11)
The disclosure is information the public agency has designated as directory
information if the public agency has given public notice to parents of students
in attendance and students of legal age in attendance at the public agency:
(A) of the types of personally identifiable
information that the agency has designated as directory information;
(B) that a parent or student of legal age has
the right to refuse to let the public agency designate any or all of those
types of information about the student as directory information; and
(C) of the period of time in which a parent
or student of legal age has to notify the public agency in writing that he or
she does not want any or all of those types of information about the student
designated as directory information.
A public agency may disclose directory information about
former students without meeting the conditions set forth in this
subdivision.
(12) The disclosure is to any of the
following:
(A) The parent of a dependent
student as defined under Section 152 of the Internal Revenue Code of
1986.
(B) Accrediting organizations
to carry out their accrediting functions.
(C) The parent of a student or to the student
of legal age.
(s) The public agency must, upon request,
provide the parent or student of legal age with a copy of the information that
has been disclosed.
(t) The public
agency may disclose personally identifiable information from an educational
record only on the condition that the party to whom the information is
disclosed will not redisclose the information to any other party without the
prior consent of the parent or student of legal age, except for disclosures:
(1) of directory information;
(2) to the parent or student of legal age;
or
(3) made pursuant to:
(A) court orders; or
(B) lawfully issued subpoenas.
(u) The public agency
must not permit a third party access to personally identifiable information
from an educational record for at least five (5) years, if the Family Policy
Compliance Office, United States Department of Education determines that the
third party improperly redisclosed personally identifiable information from
educational record.
(v) In the
event that a parent refuses to provide consent under this section, the public
agency may initiate the due process procedures stated in 511 IAC 7-45.
