Dear FERPA Professor,
A student called this morning to say that her ex-husband would be trying to subpoena her records from our institution, and she stated that she did not want him to have them. Shortly after her call, I did receive a subpoena, requesting records by a certain date. The date by which the subpoena states we must comply is problematic, however, because it does not allow for a reasonable amount of time for the student to respond.
Can we send the student a standard notification via certified mail (with a copy to her attorney) informing her that we intend to comply? Or does something in FERPA supersede a subpoena? Would I eventually receive a directive quashing the original subpoena?
Thanks,
Dee Sequins
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Dee,
There is an exception in FERPA at §99.31(a)(9)(i) of the FERPA regulations which permits institutions to respond to lawfully issued subpoenas so long as the specific conditions are met. Note that the institution is required to notify the student, providing enough time for the student to take action with the court regarding the subpoena. If the subpoena party does not agree to an extension, your institution may have to go back to the court to get the subpoena date modified because you must give the student ample time to respond. See the letter to Youngstown State on page 296 of the 2012 AACRAO FERPA Guide for more clarification on how to handle this situation.
I hope this is helpful in answering your question.
Sincerely,
The FERPA Professor
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