What Is an Education Record Under FERPA?
FERPA applies to education records, defined at 34 C.F.R. § 99.3 as records that are directly related to a student and maintained by an educational agency or institution, or by a party acting for it.
That is deliberately broad. It is not limited to transcripts. It reaches disciplinary files, financial aid records, health records held by the institution, emails about you retained in a file, notes in a student information system, investigation reports, and photographs and recordings where you are the subject.
The interesting questions are almost never about what is covered. They are about what is excluded.
The exclusions
Section 99.3 carves five categories out of the definition, and each of them generates real disputes.
1. Sole possession records. Records kept in the sole possession of the maker, used only as a personal memory aid, and not accessible or revealed to anyone except a temporary substitute. A professor’s private notes qualify — until they are shared, filed, or relied on in a decision, at which point the exclusion generally evaporates. The moment a “personal note” is produced at a hearing, it has stopped being one.
2. Law enforcement unit records. Records created by a campus law enforcement unit, for a law enforcement purpose, and maintained by that unit. This is narrower than schools often assert. A record created by a conduct office does not become a law enforcement record because campus police were involved, and a record shared with the conduct office for a disciplinary purpose is not maintained by the law enforcement unit for a law enforcement purpose.
3. Employment records. Records relating to a person employed by the institution, made and maintained in the ordinary course of business, relating exclusively to that employment. The catch is important: this does not apply where employment is contingent on being a student. Records about a graduate teaching assistant, a resident advisor, or a work-study post are generally still education records.
4. Treatment records. Records on a student aged 18 or older, made or maintained by a physician, psychiatrist, psychologist or other recognized professional, in connection with treatment, and disclosed only to those providing the treatment. These are the campus counselling and health center records. Note the mechanism: they are excluded while they remain treatment records, and a student may have them reviewed by a physician or other appropriate professional of their choice. If a treatment record is disclosed for a non-treatment purpose — to a conduct panel, to an academic committee — the exclusion no longer holds.
5. Post-attendance records. Records created after a person is no longer a student and not directly related to their attendance — alumni relations material, for example. Records about your time as a student remain education records forever.
Peer grading
In Owasso Independent School District v. Falvo, 534 U.S. 426 (2002), the Supreme Court held that student work graded by other students in class is not an education record at the moment of grading, because it is not yet maintained by the institution. The grade becomes a record when the teacher records it.
The reasoning matters more than the holding: “maintained” means something. A record has to be kept, in a place where records are kept, by the institution.
Where this gets used
Two situations recur.
You want something and are told it is not an education record. Ask which of the five exclusions applies, and test it against the facts. Was the “personal note” shared? Was the “police record” created by the law enforcement unit for a law enforcement purpose, or by a dean? Is the “employment record” about a job you hold because you are a student?
Something was disclosed and you are told FERPA did not apply. Same analysis in reverse. Treatment records that traveled from a counselling center into a disciplinary process are the most common version of this, and the most serious.
Common questions
Are emails about me education records?
If they are directly related to you and maintained by the institution, generally yes. Whether a particular email has been “maintained” rather than merely sent is a real question, and institutions litigate it.
Is a recording of a hearing an education record?
A recording directly related to you and maintained by the institution generally is, though access may be shaped by the fact that it also relates to other students.
What about a record about me and another student?
Where a record contains information on more than one student, you may inspect the portion relating to you, or be informed of it. That is 34 C.F.R. § 99.12.
Get in touch if a records question has become a real problem — a hold you cannot resolve, a disclosure that should not have happened, or a record that is wrong and staying wrong.
General information about federal education privacy law. It is not legal advice, it does not create an attorney-client relationship, and it cannot account for your institution’s own policies or the law of your state, several of which impose obligations beyond FERPA.