Can a Tennessee school district share student names and addresses with a charter school in the district, and can a citizen get a student's phone number through a public records request?

Subject

Opinion No. 15-55, Availability of Student Directory Information, July 2, 2015

Plain-English summary

Representative Stewart asked the AG three questions about who can see student information in Tennessee schools. The questions turned on two overlapping privacy regimes: the federal Family Educational Rights and Privacy Act (FERPA) and Tennessee's Public Records Act with its student-records confidentiality exception (Tenn. Code Ann. § 10-7-504(a)(4)(A)).

Three answers:

First, a school district (a local education agency) can share student names and addresses with a charter school in its district if the district determines the charter has a "legitimate educational interest." Under FERPA, a chartered school within an LEA's district counts as "other school officials within the agency or institution," so it can receive student information without parental consent when the LEA finds a legitimate educational reason.

Second, the Tennessee statute's authorization of "directory information" disclosure is permissive, not mandatory. The provision uses "may" rather than "shall," and the broader statutory context is to protect student confidentiality. So a district can choose to release directory information; it cannot be compelled to.

Third, a citizen public-records request for a student's telephone number is denied. Tennessee's statutory list of releasable directory information (Tenn. Code Ann. § 10-7-504(a)(4)(A)) is narrower than FERPA's list. Telephone numbers are FERPA "directory information" but they are not in Tennessee's list, so they cannot be released under Tennessee's Public Records Act without consent.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why do FERPA and Tennessee law both regulate student records?

FERPA is the federal floor: educational institutions that take federal funds must comply or lose the funding. State laws can layer additional protection on top. Tennessee's Public Records Act exception treats student records as confidential and only authorizes a narrower set of "directory information" for release than FERPA allows.

What counts as a "legitimate educational interest" for a charter school?

FERPA does not define the term exhaustively. The school district has to make the determination. Common factors: does the charter need the information for outreach to potential students in its zone, for educational planning, for compliance with state law? An LEA should document its reasoning when it decides to share.

Why isn't disclosure of directory information mandatory?

Because the statutory text uses "may," and the broader purpose of Tenn. Code Ann. § 10-7-504(a)(4)(A) is to protect student confidentiality. Read in context, "may" gives the institution discretion to release directory information when consistent with the privacy purpose, not a duty to release on demand.

Why are phone numbers different?

FERPA's definition of "directory information" includes telephone listing. Tennessee's statute lists name, age, address, dates of attendance, grade levels completed, class placement, and academic degrees. Phone numbers are not on Tennessee's list. So even though releasing a phone number would not violate FERPA, it would violate Tennessee's confidentiality treatment for student records that are not "directory information" on the state list.

What's the practical difference between FERPA and Tennessee directory information?

FERPA's list includes things like phone number, place of birth, photographs, weight and height of athletes, prior school attended. Tennessee's list is narrower. Tennessee schools should use the Tennessee list when responding to public-records requests, not the FERPA list.

Does the parent have to opt out for these protections to apply?

Under FERPA, parents must be given notice of the institution's designated directory information categories and a chance to opt out. Tennessee statute does not require an opt-out for directory disclosures; it simply makes student records confidential and authorizes the listed categories.

Background and statutory framework

FERPA (20 U.S.C. § 1232g) conditions federal funding for educational agencies and institutions on protection of student educational records and personally identifiable information. The basic rule is that PII can be released only with parent or eligible-student consent, with exceptions. 20 U.S.C. § 1232g(b)(1)(A) permits release "to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests." FERPA permits release of "directory information" without consent if the institution has given public notice of the categories and provided opt-out opportunities (20 U.S.C. §§ 1232g(a)(5)(A), (B), (b)(1)). Directory information includes name, address, telephone listing, date and place of birth, major field of study, athletic information, dates of attendance, degrees, and prior school. 20 U.S.C. § 1232g(a)(5)(A). The Department of Education has interpreted the list as non-exhaustive. 34 C.F.R. § 99.3 (2013); Electronic Privacy Information Center v. U.S. Department of Education, 48 F.Supp.3d 1, 6 (D.D.C. 2014).

The Tennessee Public Records Act mandates that "[a]ll state, county and municipal records shall . . . be open for personal inspection by any citizen of this state . . . unless otherwise provided by state law." Tenn. Code Ann. § 10-7-503(a)(2)(A). Tenn. Code Ann. § 10-7-504(a)(4)(A) is the relevant otherwise-provides law: it treats student records as confidential and authorizes release of a narrower set of student information (name, age, address, dates of attendance, grade levels completed, class placement, and academic degrees awarded). Telephone numbers are not on Tennessee's list.

For charter schools, Tenn. Code Ann. §§ 49-13-104(2) and 49-13-105(a) treat charter schools as part of the LEA that chartered them. So a chartered school's officials count as "school officials within the agency or institution" under FERPA.

The AG's permissive-vs-mandatory analysis relies on the standard rules: "shall" is generally mandatory, "may" is generally permissive (Baker v. Seal, 694 S.W.2d 948, 951 (Tenn. Ct. App. 1984); JJ & TK Corp. v. Bd. of Commis., 149 S.W.3d 628, 631 (Tenn. Ct. App. 2004); Steppach v. Thomas, 346 S.W.3d 488, 505 (Tenn. Ct. App. 2011)). The legislative purpose informs the analysis (Stiner v. Powells Hardware Co., 168 Tenn. 99, 75 S.W.2d 406, 407 (1934)).

Citations

• Tenn. Code Ann. § 10-7-503(a)(1)(A) (definition of public record)
• Tenn. Code Ann. § 10-7-503(a)(2)(A) (openness mandate)
• Tenn. Code Ann. § 10-7-504(a)(4)(A) (student records confidentiality and directory information)
• Tenn. Code Ann. §§ 49-13-104(2), 49-13-105(a) (charter schools as part of LEA)
• 20 U.S.C. § 1232g(a)(5)(A), (B) (FERPA directory information)
• 20 U.S.C. § 1232g(b)(1)(A) (FERPA school official exception)
• 34 C.F.R. § 99.3 (FERPA implementing regulation)
• Gonzaga University v. Doe, 536 U.S. 273 (2002)
• Doe v. Woodford County Bd. of Educ., 213 F.3d 921 (6th Cir. 2000)
• Baker v. Seal, 694 S.W.2d 948 (Tenn. Ct. App. 1984)
• Electronic Privacy Information Center v. U.S. Department of Education, 48 F.Supp.3d 1 (D.D.C. 2014)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-55.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 2, 2015
Opinion No. 15-55
Availability of Student Directory Information

Question 1

If a local education agency or school district receives a request from a charter school within its district for the names and addresses of students within the school district, who are not currently students at the charter school, may the school district provide the requested information to the charter school?

Opinion 1

Yes, provided that the local education agency or school district has determined that the charter school has a legitimate educational interest in the disclosure of this information.

Question 2

Is disclosure of the student directory information referenced in Tenn. Code Ann. § 10-7-504(a)(4)(A) permissive or mandatory?

Opinion 2

The provision in Tenn. Code Ann. § 10-7-504(a)(4)(A) authorizing the disclosure of student directory information is permissive.

Question 3

If a local school district receives a public records request from a Tennessee citizen for a student's telephone number, may the school district release that information?

Opinion 3

No. Tennessee Code Annotated § 10-7-504(a)(4)(A) does not authorize the release of a student's telephone number without prior consent.

ANALYSIS

There are two statutes, one state and one federal, that govern access to student educational records and information in the hands of educational institutions: the Tennessee Public Records Act ("TRPA") and the Family Educational Rights and Privacy Act of 1974 ("FERPA").

FERPA protects student educational records and personally identifiable information of students from improper disclosure by conditioning the receipt of federal funds by "any public or private educational agency or institution" on adherence to certain requirements related to access to and disclosure of student educational records. See 20 U.S.C. § 1232(g)(b); Gonzaga University v. Doe, 536 U.S. 273, 276 (2002); Doe v. Woodford County Bd. of Educ., 213 F.3d 921, 926 (6th Cir. 2000). FERPA's basic rule is that before an educational institution may disclose personally identifiable information from a student's educational record, the institution must obtain written consent from the parent or eligible (over 18) student. Thus, FERPA does not, per se, make student records confidential nor does it prohibit disclosure of records; but if an educational institution does not comply with the access and disclosure requirements of FERPA, it jeopardizes its federal funding. See 20 U.S.C. § 1232(f). However, without jeopardizing its federal funding, an educational institution may disclose personally identifiable information from an educational record of a student without the required consent if the disclosure is "to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests, including the educational interests of the child for whom consent would otherwise be required." 20 U.S.C. § 1232g(b)(1)(A).

TRPA provides that "[a]ll state, county and municipal records shall, at all times during business hours, . . . be open for personal inspection by any citizen of this state . . . unless otherwise provided by state law." Tenn. Code Ann. § 10-7-503(a)(2)(A). A "public record" is defined as any record, "regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency." Tenn. Code Ann. § 10-7-503(a)(1)(A).

A state law that provides otherwise with respect to student educational records is Tenn. Code Ann. § 10-7-504(a)(4)(A), which specifies that "[t]he records of students in public educational institutions shall be treated as confidential." However, this statute further provides that "information relating only to an individual student's name, age, address, dates of attendance, grade levels completed, class placement and academic degree awarded may likewise be disclosed."

1. You have asked whether a local education agency ("LEA") or school district may provide to a charter school in the district the names and addresses of students within the school district who are not currently enrolled as students at the charter school. Under TRPA, public charter schools are part of the state program of public education and the LEA is the chartering authority of a charter school in its district. See Tenn. Code Ann. § 49-13-104(2) and 105(a). Thus, officials of a public charter school chartered by an LEA constitute "other school officials . . . within the agency or institution," and, under FERPA, the LEA would be permitted to provide the names and addresses of students within the school district to the officials of such charter school, if the LEA has determined that such officials have a "legitimate educational interest." The LEA would also be permitted to provide this information to the officials of the charter school under TRPA, because disclosure of this information is specifically authorized in Tenn. Code Ann. § 10-7-504(a)(4)(A).

2. Your next question is whether the provision in Tenn. Code Ann. § 10-7-504(a)(4)(A) authorizing the disclosure of certain student information is mandatory or permissive. In determining whether a statutory provision is to be construed as permissive or mandatory, Tennessee courts have stated, generally, that:

"The intention of the legislature as to the mandatory or discretionary nature of a particular statutory provision is determined primarily from the language thereof. Words or phrases which are generally regarded as making a provision mandatory include 'shall,' and 'must.' On the other hand, a provision couched in permissive terms is generally regarded as directory or discretionary. This is true of the word 'may,' or 'authorizes,' or 'power,' or the phrase 'it is lawful,' especially where the act to be done does not affect third persons and is not clearly beneficial to them, or to the public generally."

Baker v. Seal, 694 S.W.2d 948, 951 (Tenn. Ct. App. 1984) (quoting 73 Am.Jur.2d Statutes § 22 (1974); see also JJ & TK Corp. v. Bd. of Commis., 149 S.W.3d 628, 631 (Tenn. Ct. App. 2004) (use of the word "shall" in a statute is generally construed as being mandatory rather than discretionary) and Steppach v. Thomas, 346 S.W.3d 488, 505 (Tenn. Ct. App. 2011) (use of the word "may" in a statutory ordinarily connotes discretion or permission). At times, though, Tennessee courts have concluded that words of a permissive nature, such as "may," are to be given a mandatory significance. Fiske v. Grider, 171 Tenn. 565, 106 S.W.2d 553, (1937); Burns v. Duncan, 23 Tenn. App. 374, 133 S.W.2d 1000 (1940). Thus, in determining whether a provision is permissive or mandatory, "the prime object is to ascertain the legislative intent, from a consideration of the entire statute, its nature, its object, and the consequences that would result from construing it one way or the other . . . ." Stiner v. Powells Hardware Co., 168 Tenn. 99, 75 S.W.2d 406, 407 (1934).

In this instance, the applicable statute uses both "shall" and "may":

The records of students in public educational institutions shall be treated as confidential. . . . Statistical information not identified with a particular student may be released to any person, agency or the public; and information relating only to an individual student's name, age, address, dates of attendance, grade levels completed, class placement and academic degrees awarded may likewise be disclosed.

Tenn. Code Ann. § 10-7-504(a)(4)(A) (emphasis added).

In looking at the statute as a whole, the clear legislative intent is to maintain the confidentiality of records of students in public educational institutions. Accordingly, the use of the word "may" in authorizing the disclosure of certain student information is intended to be permissive, i.e., to give a public educational institution discretionary authority to release the information in question as may be consistent with the statutory purpose of maintaining confidentiality.

3. Your last question is whether a school district or LEA may disclose the telephone number of a student.

FERPA provides that an educational agency or institution may disclose "directory information" without the required consent if it has given public notice to parents and eligible students of (i) the types of personally identifiable information it has designated as "directory information"; (ii) their right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and (iii) the time within which a parent or eligible student must notify the agency or institution in writing that he/she does not want any or all of those types of information designated as directory information. 20 U.S.C. §§ 1232g(a)(5)(B), (b)(1).

"Directory information" is defined as information relating to a student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student. 20 U.S.C. § 1232g(a)(5)(A). The U.S. Department of Education has further interpreted directory information to mean "information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed," and it has construed this statutory list of directory information to be non-exhaustive. See 34 C.F.R. § 99.3 (2013); Electronic Privacy Information Center v. U.S. Department of Education, 48 F.Supp.3d 1, 6 (D.D.C. 2014). In essence, FERPA exempts "directory information" found in education records from the statutory disclosure restrictions, but leaves each educational agency or institution free to determine for itself what categories of directory information it will release and for what purposes.

Since telephone numbers are specifically identified as "directory information," a school district or LEA would be permitted under FERPA to release a student's telephone number without prior consent, provided that it has given the required "public notice" and opportunity to parents or eligible students to "inform the institution or agency that any or all of the information designated should not be released without the parent's prior consent." 20 U.S.C. § 132g(a)(5)(B).

On the other hand, TRPA would prohibit a school district or LEA from disclosing a student's telephone number without prior consent. Tennessee Code Annotated § 10-7-504(a)(4)(A) lists the categories of "directory information" may be released from a student's educational records; telephone numbers are not included in that listing. Accordingly, appropriate consent would be required before a student's telephone number could be disclosed.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Mike Stewart
State Representative
17 Legislative Plaza
Nashville, TN 37243-0152