Access to student records
A board member’s access to student records may be limited under federal law. The Family Educational Rights and Privacy Act of 1974 (FERPA) prohibits school districts from releasing a student’s education records without parental consent. FERPA contains many exceptions, including one that allows districts to disclose student records to school officials like a school board member so long as the school board member has a “legitimate educational interest” in the record.
Each district is required to develop criteria for determining what constitutes a “legitimate educational interest” and must include that information in an annual notification that is sent to parents. While the criteria may vary from one district to another, the U.S. Department of Education advises that, generally, a school official has a legitimate educational interest if the official “needs to review an education record in order to fulfill his or her professional responsibility.”
When applied, the U.S. Department of Education’s standard typically limits board members from accessing specific student records under the school official exception. Given the responsibilities of board members, it is unlikely that board members would regularly need to review an individual student’s education record in order to fulfill their professional responsibilities. However, it may be appropriate in some contexts. For example, school board members likely have a legitimate educational interest to access some portion of a student’s education records when that student appeals their disciplinary action to the board. In this situation, a board member, in order to fulfill their professional responsibility, would likely need access to student education records that relate to the disciplinary incident.
FERPA applies only to records that include personally identifiable information about a student. School board members will often be provided access to aggregated data or summaries of student information that doesn’t include information that personally identifies any individual student. They may also have access to reports or presentations prepared by school administrators that highlight key metrics or issues within the district. This level of access is not prohibited under FERPA.
Access to employee records
FERPA does not apply to employee records, so board members typically have greater access to these records. Public employee personnel records are generally considered “public records” that must be disclosed to members of the public upon request. Many boards have adopted board policies that allow a board member, in the performance of their official duties, to inspect a record of the district without having to make a formal public records request. These policies typically exempt access to student records and certain confidential portions of personnel records.
Some boards have also adopted policy language that restricts the use of information obtained from employee personnel records by members of the board. These policies typically limit the use of such information to those uses that aid the board members in fulfilling their legal responsibilities on matters such as appointments, assignments, promotions, demotions, remuneration, discipline or dismissal, or to aid in the development or implementation of personnel policies.
Given the typical responsibilities of board members, it would not be unusual for board members to have access to the contract, job description, and prior evaluations of the district’s superintendent and treasurer. The board is statutorily responsible for evaluating these two individuals, so access to these types of records is likely necessary to enable the board to carry out its legal responsibilities.
From a practical standpoint, it is generally considered a best practice to share concerns about other district employees with the superintendent and fellow board members before requesting access to their personnel records. If the full board feels the need to further look into a situation, they should first attempt to resolve the situation with the superintendent, who can provide access to information that best addresses the board members’ concerns.
OSBA’s “Question of the Month” posts focus on questions that apply to many school board members and come up frequently in phone calls and presentations. If you have additional questions on this topic or others, we encourage you to reach out to the OSBA Legal Hotline at (855) OSBA-LAW.