Ask the FERPA Professor

Dear FERPA Professor,

At our school, admission applicants must indicate whether or not they waive the right to review any letters of recommendation.

I thought this waiver would apply even if the applicant becomes a student and the school is served a subpoena. In the 2012 FERPA Guide, Appendix E (#23) Letter to Harvard University, the ruling was that the admission "summary sheets" became a part of the student's record and were therefore education records covered by FERPA. However, it did not state that the letters of recommendation (the basis of these sheets) were covered by FERPA. Therefore, I would conclude that letters of recommendation are still protected by the waiver even if the applicant becomes a student.

At a recent conference, a colleague insisted that if a subpoena requests letters of recommendation, we must release them. Is it true that letters of recommendation for a current or former student must be released if specified in a subpoena? Or are they still protected and do not need to be released if the applicant signed a waiver?

Sincerely,

Odell Iseus

_________________________________________________________

Dear Odell,

A letter of recommendation to which an applicant waives the right to review would become an education record if the applicant becomes a student at the institution and the letter is maintained.  However, 99.12(b)(3)(i) of the FERPA regulations clarifies that the institution is not required to permit the student the opportunity to inspect and review those letters.  You can find this language on page 157 of the 2012 AACRAO FERPA Guide.  In addition, as with any education record maintained by the institution, the letter would still be subject to disclosure in compliance with a lawfully issues subpoena so long as the conditions of 99.31(a)(9), which you can find on page 161 of the Guide, are met.

I hope this is helpful in answering your question.

Sincerely,

The FERPA Professor

 

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