A little over a month ago the U. S. Department of Education released a draft FERPA Dear Colleague Letter (guidance) seeking public comments (due October 2, 2015) on its preliminary legal view that there are very limited circumstances whereby a university may share student medical records with its own legal counsel.
Under the Department’s proposed guidance, “institutions [of higher education] that are involved in litigation with a student should not share student medical records [under FERPA’s “school official” exception, 20 USCS § 1232g(b)(1)(A), 34 C.F.R. § 99.31(a)(1)] with the institution’s attorneys or courts unless the litigation in question relates directly to the medical treatment itself or the payment for that treatment, and even then disclose only those records that are relevant and necessary to the litigation.”
While the Department’s request for public comment on its draft letter is positive, it is at the same time curious. The Department’s highly restrictive reading of FERPA (at least in its draft) cries out for regular Notice and Comment rulemaking in the Federal Register, not a Dear Colleague guidance letter.
Taking such a restrictive reading of the law via a Dear Colleague Letter raises fundamental legal questions. Where federal departments or agencies have given binding effect to Dear Colleague Letters, Memoranda, Bulletins, Circulars, Manuals, Advisories or other forms of “guidance,” courts have set-aside such letters and related, requiring the government to go back and follow regular Notice and Comment requirements of the Administrative Procedures Act. Iowa League of Cities v. EPA_ 711 F.3d 844, (8th Cir. 2013); see also Appalachian Power Co v EPA, 208 F. 3d 1015, 1021-1028 (D.C. Cir. 2000). For a more detailed discussion, see Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals and the Like–Should Federal Agencies Use Them to Bind the Public? 41 Duke L. J. 1311 (1992); William Funk, Interpretive Rules Symposium: A Primer on Legislative Rules, 53 Admin. L. Rev. 1321 (2001); Gwendolyn McKee, Judicial Review of Agency Guidance Documents: Rethinkng the Finality Doctrine, 60 Admin. L. Rev. 371 (2008).