MFTs as School Counselors:
Confidentiality and Privilege


By Bonnie R. Benitez, Attorney
Previously employed with CAMFT

The Therapist
(November/December 2002)


This article is designed to be a resource for therapists working as school counselors. It will discuss issues such as confidentiality, privilege and parent access to school counseling records. A previous article, published in the July/August 2002 issue of The Therapist, discussed the State’s policy on guidance and counseling in the schools, the different roles therapists play in schools, and some of the key problems therapists face when working in school settings.

Federal Law/FERPA
Education confidentiality rules can be found in both federal and state law. Typically, state laws are drafted to comply with applicable federal laws. One example of an applicable federal law is the Family Educational Rights and Privacy Act of 1974 ("FERPA").1

FERPA was enacted to protect the privacy of a student’s education records.2 The law applies to all schools, whether public or private, that receive funds under programs of the U.S. Department of Education. Most private schools do not receive federal funding, and therefore fall outside of the purview of FERPA. FERPA also gives parents certain rights with respect to their children’s records. These rights transfer to the student upon reaching the age of 18. Students who are 18 or older are called "eligible students.

Additionally, schools are also required to notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.3

Education Records under FERPA
The rights accorded to parents and eligible students under FERPA pertain only to education records. "Education records" generally include any records in the possession of the educational institution, which contain information directly related to a student. FERPA coverage includes records, files, documents, and data directly related to students, including transcripts or other records obtained from a school in which a student was previously enrolled.4

Certain other documents, which may be in the possession of a school, fall outside of the purview of FERPA, as they do not fall within the definition of education records. These documents include:

  • sole-possession records or private notes held by educational personnel, which are not accessible or released to other personnel (which may include school counselor records if they are not accessible or released to other personnel);
  • law enforcement or campus security records which are solely for law enforcement purposes;
  • records relating to an individual's employment by the institution (unless employment is contingent on student status); and
  • records on a student who is eighteen years of age or older, or is attending an institution of post secondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional, which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student's choice (e.g., psychotherapy records of a college counseling center).

Parent Access to Education Records under FERPA
FERPA gives parents or eligible students the right to inspect and review all of the student's education records maintained by the school. However, it does not require that schools provide copies of the education records unless it is impossible for the parents or eligible student to inspect the records (e.g., great distance between the requesting party and the school).6 Under such circumstances, schools may charge a fee for copies.

FERPA also gives parents and eligible students the right to request that a school correct records believed to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement within the record commenting on the contested information in the record.7

While FERPA does not necessarily provide an exception for school counseling records, it does provide an exception for records that have been in the "sole possession" of educational personnel that are not accessible or released to other personnel. Records of the school counselor, if not shared with other school personnel, would fall under this exception. As a result, parent’s access to these records would not be mandated under FERPA.

Release of Education Records to Third Parties under FERPA
FERPA requires that schools obtain written permission from the parent or eligible student before releasing any information from a student's record to third parties, subject to certain exceptions. The exceptions include, but are not limited to, the release of information to the following parties:

  • school employees who have a need to know;
  • other schools to which a student is transferring;
  • certain government officials in order to carry out lawful functions;
  • appropriate parties in connection with financial aid to a student;
  • organizations conducting certain studies for the school;
  • accrediting organizations;
  • individuals who have obtained court orders or subpoenas;
  • persons who need to know in cases of health and safety emergencies; and
  • State and local authorities, within a juvenile justice system, pursuant to specific State law.8

FERPA also permits schools to disclose, without consent, "directory" type information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about the directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose the directory information about them.

Education Records under California Law
As previously stated, state laws are typically drafted to comply with federal laws, such as FERPA. California is no exception. Under both FERPA and California law, education records are limited, confidential and accessible to parents. For purposes of determining the confidentiality of a student’s school counseling records, we must first review the pertinent definitions found in the California Education Code with regard to education records.

"Education record"9 is defined as any item of information directly related to an identifiable student, other than directory information, which is maintained by a school district or required to be maintained by an employee in the performance of his/her duties whether recorded by handwriting, print, tape, film, microfilm or other means. This definition is similar, but not identical to the definition of education records in FERPA. Schools are not authorized to permit access to education records to any person without written parental consent or under judicial order, subject to certain exceptions.

"Education record" does not include informal notes related to a student, compiled by a school officer or employee, which remain in the sole possession of the maker and are not accessible or revealed to any other person except a substitute (e.g., a note a teacher leaves for a substitute teacher to make the substitute aware of a problem regarding a particular student, or possibly counseling notes that are maintained solely by the school counselor). In addition, certain confidential information (discussed below), is prohibited from becoming a part of the education record, without the written consent of the person who disclosed the confidential information.

Parent Access to Education Records under California Law
California law defines "Parent" as a natural parent, an adopted parent, or legal guardian. If parents are divorced or legally separated, the parent or parents having legal custody of the student is the only parent(s) that retains the right to challenge the content of a record, offer a written response to a record, or consent to release records to others. Whenever a student has attained the age of 18 years, or is attending an institution of post secondary education, the rights accorded to the parent(s) or guardian of the student are then bestowed upon the student.

"Access" means a personal inspection and review of a record or an accurate copy of a record, or receipt of an accurate copy of a record, an oral description or communication of a record or an accurate copy of a record, and a request to release a copy of any record.11

Parents have an absolute right to access all education records related to their children, which are maintained by public or private schools.12 In addition, parents may challenge the content of any education record. With regard to school counseling records, the issue is whether the records of the school counselor are, in fact, part of the education record.

Because information disclosed to a school counselor by students who are under 12 years of age is not addressed in the Education Code (see below), such information may be considered a part of the student’s education record, and therefore accessible to the parents of the student. However, an argument can be made that the notes of a school counselor that remain in his or her sole possession, are not accessible to or cannot be revealed to any other person.

Records not Included in a Student’s Education Record
California law provides that some school counseling records are confidential, meaning that they are not to be included within the definition of "education records." For example, any information of a personal nature disclosed by a student, or parent or guardian of a student 12 years of age or older, in the process of receiving counseling from a school counselor.13 This confidential information is prohibited from becoming a part of the education record without the written consent of the person who disclosed the confidential information. That person can be the student, or the parent or guardian of the student, who reveals information during the course of the student’s school counseling. Because this information cannot become a part of the education record, it falls outside of the purview of FERPA, as well as similar California laws that mandate parental access.

There are exceptions to the confidentiality of this information, including:

  • discussions with psychotherapists,14 or other health care providers, or the school nurse, for the sole purpose of referring the student for treatment;15
  • reporting information to the principal or parents of the student when the school counselor has reasonable cause to believe that disclosure is necessary to avert a clear and present danger to the health, safety, or welfare of the student or other persons living in the school community such as administrators, teachers, school staff, parents, students, and other school community members;16
  • reporting information to the principal, other persons inside the school, as necessary, the parents of the student, and other persons outside the school when the student indicates that a crime, involving the likelihood of personal injury or significant or substantial property loss, will be or has been committed;17
  • reporting information to one or more persons specified in a written waiver after the written waiver of confidence is read and signed by the student and preserved in the student’s file (i.e., after getting proper written authorization for the release of confidential information);18
  • conferring with other school staff, as appropriate, regarding modification of the student's academic program; • reporting child abuse or neglect, as mandated by law; and
  • disclosing information to law enforcement agencies when ordered to do so by a court of law, to aid in the investigation of a crime, or when ordered to testify in any administrative or judicial proceeding. 19

Parent Access to Information not Included in the Education Records
Although both FERPA and California law mandate parental access to education records, confidential school counselor records and other information (i.e., information of a personal nature disclosed during counseling by a student 12 years of age or older) are not to be included in the student’s education records. School counselors are permitted to withhold such confidential information from the parents of the student when the school counselor has reasonable cause to believe that the disclosure would result in a clear and present danger to the health, safety, or welfare of the student 20

MFTs as School Counselors
The language in the section of the Education Code mentioned above is similar to the language in the Patient Access to Health Records sections of the Health and Safety Code, which permits health care providers, as defined, to refuse a parent’s request for a minor’s records in situations where the health care provider determines that access to the patient records requested by the representative would have a detrimental effect on the provider’s professional relationship with the minor patient or the minor’s physical safety or psychological well being. However, in this section of the Health and Safety Code, the term "patient records" refers only to those records maintained by a "health care provider." While the term "health care provider" includes licensed psychologists, licensed marriage and family therapists, and licensed clinical social workers among others, it does not include school counselors or school psychologists.21 As a result, these sections of law are applicable to school counselors who are also otherwise licensed, but not applicable to school counselors who do not hold one of the named licenses.

This raises an interesting question for MFTs (or other licensees) who work as school counselors. Should MFTs, working as school counselors, follow the laws and regulations set forth for school counselors, or those set forth for MFTs? The answer to this question is the same as the answer to most broad legal question; it depends. There is a general rule of law that provides where there is a conflict between two statutes, the statute that is more specific governs. Therefore, generally speaking, all school counselors, including those who are also MFTs, should first look to the laws and regulations applicable to school counselors and comply with the requirements they set forth.

Moreover, when it comes to issues of confidentiality, therapists should generally err on the side of caution by protecting the confidentiality of their patients. Complaints are rarely filed against therapists who refuse to release confidential information, but are often filed against therapists who release confidential information when they should not have. In fact, with regard to school counseling information of a personal nature, the Education Code provides that school counselors treating students 12 or older shall not incur any civil or criminal liability as a result of keeping the information confidential.22

School Counselors and Psychotherapist-Patient Privilege
Before discussing psychotherapist-patient privilege, it is important to distinguish privilege from confidentiality. Privilege involves the right to withhold testimony in a legal proceeding, and usually involves a subpoena. Confidentiality is the restriction on the volunteering of information outside of the courtroom setting. Having said that, some laws, applicable to MFTs, have no similar counterpart with regard to school counselors. For example, MFTs fall within the definition of a "psychotherapist" in the California Evidence Code sections pertaining to psychotherapist-patient privilege, while school counselors do not. As a result, psychotherapist-patient privilege may be applicable to school counselors who are also otherwise licensed, but not applicable to school counselors who do not hold one of the named licenses.

Due to the confusion that such a disparity may create, schools and school counselors are best served by developing written policies to address these issues. For example, as a part of informed consent, parents could read and sign documentation that indicates that nothing disclosed during the course of their child’s school counseling falls within the psychotherapist- patient privilege. In the absence of such information, a parent could likely argue that information disclosed during the course of school counseling, where the counselor is also an MFT, would be privileged. If that is the case, the MFT/school counselor should err on the side of caution by protecting the confidential information of the student. This would be accomplished by asserting privilege on the student’s behalf in response to a subpoena for records or testimony.

School Counselors Working in Private Schools
As stated above, FERPA only applies to schools that receive federal funds. Most private schools do not receive such funds; therefore private schools do not have to follow the requirements set forth in FERPA. In addition, most of the sections in the California Education Code only apply to public schools. Generally, it is only those sections of the code that specifically refer to private schools that are applicable to private schools. Most of the sections discussed in this article do not specifically refer to private schools. However, Section 49069, which states that parents have an absolute right to access all education records related to their children, names both public and private schools.

Due to the absence of laws regulating private schools, the schools and school counselors are best served by developing written policies to address some of the issues raised in this article, as well as issues of informed consent for school counseling.

School Counselors Employed by Outside Agencies
Many school districts circumvent the requirement for school counselors to have a PPS credential by contracting with outside agencies to provide counseling services to students. Although the Education Code does not specifically apply to these agencies and their employees, it does apply to the school districts for which they provide services. The contract for services between the district and the agency should address the applicability of certain laws, or contain provisions that mirror applicable laws. However, if it does not, being aware of and following the regulations discussed in this article with regard to the confidentiality of student information best serves the parties involved.

Conclusion
Therapists working in school settings should be aware of the specific laws applicable to school counselors. Such laws may differ somewhat from laws affecting therapists working in other settings, such as private practice. Such laws may, depending upon the specific situation, supersede the more general laws addressing therapists working with minors in non-school settings. As always, when faced with difficult legal and ethical dilemmas please call CAMFT for consultation. We’re here for you!

Quick Reference for School Counselors


The information contained in this article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.


  1. 20 U.S.C. 1232g
  2. This article uses the term "education records," which is defined and used throughout FERPA. The California Education Code defines and uses the term "pupil records." Any use of the term "education records" in this article is intended to refer to "pupil records" as defined in California law, as well as "education records" as defined in FERPA.
  3. 20 U.S.C. 1232g at (a)(5)
  4. Id. at (a)(4)(A)
  5. Id. at (a)(4)(B)
  6. Id. at (a)(1)(A)
  7. Id. at (a)(2)
  8. Id. at (b)(1)
  9. Called "pupil record" in section 49061
  10. Education Code section 49061
  11. Education Code section 49061
  12. Education Code section 49069
  13. Education Code section 49602
  14. As defined in Evidence Code section 1010
  15. Education Code section 49602(a)
  16. Id. at (c)
  17. Id. at (d)
  18. Id. at (e)
  19. Id.
  20. Id.
  21. Health and Safety Code section 123105
  22. Education Code section 49602

This article appeared in the November/December 2002 issue of The Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.
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