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The Department of Higher Education collects data on individuals for the purpose of evaluating or auditing state-supported programs. While the Department's data may be used as part of an audit by the State Auditor's Office, the data is typically used for evaluation. Evaluations and reports are produced by the Commission as part of its responsibility to report to the Governor, the General Assembly, and the public as to the effectiveness of the higher education system in carrying out the statewide goals of quality, access, and diversity.
In collecting and maintaining this data, the Department must follow the relevant state and federal statutes to protect and keep confidential the data of individuals on the database. The most pertinent state statute comes from new language introduced in 1985 by HB 1187:
23-1-108 (9) The state supported institutions of higher education shall provide the Commission with such data as the Commission deems necessary upon its formal request. Data for individual students or personnel shall not be divulged or made known in any way by the director of the Commission or by any Commission employee, except in accordance with judicial order or as otherwise provided by law. Any person who violates this subsection (9) commits a class 1 misdemeanor and shall be punished as provided in section 18-1-106, C.R.S. Such person shall, in addition thereto, be subject to removal or dismissal from public service on grounds of malfeasance in office.
The Colorado Open Records Law (24-72-201 through 24-72-205) also ensures that a description of the types of data maintained by the Commission will be available, and that copies of any data that personally identifies an individual will be accessible by that individual.
The pertinent federal statute is the Buckley Amendment, federal statute 20 U.S.C. Section 1232g, that protects the rights of students to insist that their educational records be kept confidential. An amendment in 1979 states that:
(5) Nothing in this section shall be construed to prohibit State and local educational officials from having access to student or other records which may be necessary in connection with the audit and evaluation of any federally or State-supported education program or in connection with the enforcement of the Federal legal requirements which relate to any such program, subject to the conditions specified in the proviso in paragraph (3). (20 U.S.C. Section1232g(b)(5))
The proviso referred to in the above paragraph is:
Provided, That except when collection of personally identifiable information is specifically authorized by Federal law, any data collected by such officials shall be protected in a manner which will not permit the personal identification of students and their parents by other than those officials, and such personally identifiable data shall be destroyed when no longer needed for such audit, evaluation, and enforcement of Federal legal requirements.
The proviso of the Buckley Amendment is usually interpreted to allow data on individuals to be collected from student records by a state agency for the purpose of constructing aggregated or summary reports, as long as students are still provided the same protections regarding their rights to privacy as are provided by the institutions providing the data.
The following procedures will be followed by the Commission to guarantee the protections of individual and institutional data:
Data collection complies with the guidance and regulations set forth by the Family Educational Rights and Privacy Act (FERPA).