Department of Education Advises that Schools Can Comply with the Clear and Present Danger Reporting Requirements of the Firearm Concealed Carry Act without Violating FERPA

The Firearm Concealed Carry Act (CCA) went into effect in 2013. One of its provisions requires a principal or designee to make a report to the Illinois Department of State Police (ISP) “when a student is determined to pose a clear and present danger to himself, herself, or to others.” The purpose of the provision is to prevent individuals from obtaining a Firearm Owner’s Identification (FOID) Card if they pose a such a danger. When the law was enacted, administrators questioned whether reporting this information to the ISP may conflict with the Family Educational Rights and Privacy Act (FERPA) and the Illinois School Student Records Act (ISSRA). ISP subsequently addressed this issue in its implementing regulations, adopted in December 2013, by appearing to acknowledge that such a report may be made pursuant to the “health and safety” exception under FERPA, stating that “clear and present danger reporting shall be made consistent with [FERPA] to assist the Department with protecting the health and safety of the public by denying persons who present a clear and present danger from having lawful access to weapons.” In response to a November 2013 inquiry sent by the Illinois Association of School Boards, the Department of Education recently confirmed that schools can make such reports without violating FERPA.

According to the Department of Education’s opinion, one way that a school can make the required report to the ISP and comply with FERPA is if the report is a law enforcement unit record. Law enforcement unit records must be created by a law enforcement unit, created for a law enforcement purpose, and be maintained by the law enforcement unit. Law enforcement unit records are not considered educational records and may be disclosed without consent from parents or eligible students. Accordingly, the principal may designate a member of the law enforcement unit, such as its school resource officer, to create, send, and maintain the report required by the CCA. If the report includes directory information (and the parent has not opted out) and the observations of the law enforcement unit, then the report can qualify as a law enforcement unit record. However, if personally identifiable information from the student’s educational records is shared with the law enforcement unit (as school officials) and included in the report, that information would remain subject to FERPA.

If the report is not created by the school’s law enforcement unit or includes information from the student’s educational records and is therefore subject to FERPA, the Department of Education also affirmed that it can still be provided to the ISP under FERPA’s health and safety emergency exception. The emergency exception allows schools to disclose, without prior written consent, educational records and personally identifiable information “in connection with an emergency [to] appropriate persons if the knowledge of such information is necessary to protect the health and safety of the student or other persons.” Under this exception, the school must include in the student’s educational records an explanation that the report was made to the ISP and the ISP’s legitimate interest in the report. Further, under ISSRA, when a student record is disclosed under the emergency exception, the school must notify the parent on the following day of the information released, to whom it was released, and the purpose of the release.

The Department of Education’s response provides a detailed analysis of how the requirements of the CAA relating to the requirements and exceptions of FERPA. Schools with questions regarding clear and present danger reporting and student records are encouraged to seek guidance from legal counsel.