SUBPOENAS FOR UNIVERSITY RECORDS POLICY

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As an institution of higher education, Tufts University maintains detailed and confidential information regarding many individuals and entities (e.g. students, faculty, staff, and third parties doing business with Tufts). As such, Tufts often receives subpoenas requiring the timely production of records or information pertaining to specific individuals or entities involved in potential or ongoing litigation. This policy formalizes our procedures for responding to such subpoenas.

General Information

A subpoena may require an individual to do any of the following:

1. Produce papers, records, books, or other physical items (including electronic records) for inspection and/or copying;
2. Appear and testify in person at a trial, hearing, or other court proceeding; and/or
3. Appear in person for a deposition before trial and/or produce documents at the deposition.

If you are served with a subpoena that only requires your presence (i.e., it does not request records) you should contact University Counsel immediately. These guidelines are intended to address only subpoenas that request documents.

A subpoena is a legal document compelling the production of certain designated materials that may be relevant to a pending judicial proceeding. The person or department responding to such a subpoena typically must have control, custody, or possession of the requested materials.

Before responding to a subpoena you must consult with University Counsel to determine whether the subpoena is valid and enforceable. Examples of valid subpoenas are:

1. A subpoena issued by a Massachusetts State court. A subpoena is generally not considered valid if it is issued by another state court. This rule applies for both civil and criminal cases.
2. A subpoena issued by a Massachusetts Federal court. In federal civil cases, a subpoena may be issued by a judge within the federal district of Massachusetts or by a federal judge in another district, if the production of documents is limited to a place within 100 miles of the campus of Tufts University. In federal criminal cases, there are no jurisdictional restrictions on compliance with the subpoena.

Generally, the target of a subpoena is given approximately 10 days from the date of service to respond. However, there are occasions when a court may decrease or extend this time period. For this reason, it is always important to verify the due date, which should be clearly stated on the subpoena. Where a subpoena seeks documents that are maintained by more than one department, University Counsel will coordinate the collection of documents from the various departments.

Documents requested by subpoena should be delivered to the requesting party on or before the date designated in the subpoena. The University must keep a record of both the subpoena and any records produced. The recipient of the subpoena must coordinate with University Counsel before disclosing any documents requested.

Specific Records

A. Employment Records

Subpoenas requesting employment records of staff personnel should be directed to the Human Resources Service Center. A copy should be forwarded to the Office of University Counsel.

Subpoenas requesting employment records of faculty should be directed to the office, college, or school in which such faculty member is/was employed. A copy should be forwarded to the Office of University Counsel.

B. Student Records (See FERPA Summary)

The Registrar's Office may respond to valid subpoenas seeking transcripts only. Subpoenas seeking "any and all" records maintained by the University or subpoenas seeking additional records maintained by other departments should be forwarded to the Office of University Counsel.

Before disclosing student records, the University must usually notify the student of the subpoena. This notice is required by law and provides the student time and opportunity to challenge the subpoena, if the student cares to do so.

The college or school where the student is (or was) enrolled will respond to requests for admissions or academic records.

The college or school where the student is (or was) enrolled and the Office of the Dean of Students will respond to requests for disciplinary records.

In all cases a copy should be forwarded to the Office of University Counsel.

The following procedures should be followed when producing student records of any kind:

1. Make sure that the subpoena includes either the student's social security number or university identification number to ensure that we are retrieving the records of the correct individual.
2. All files must be reviewed to ensure that personal information relating to persons not named in the subpoena is either excluded or redacted.

C. Medical Records (See HIPAA Summary)

A subpoena or a request from an attorney representing a Tufts student, staff, or faculty member requesting protected health information (PHI) concerning that student, staff, or faculty member must be accompanied by a valid document authorizing the requested disclosure.

A subpoena from an attorney representing a third party who is requesting PHI concerning a Tufts student, staff, or faculty member must be accompanied by at least one of the following documents before records may be released:

1. A valid authorization to disclose the PHI signed by the target of the subpoena;
2. A certificate of compliance from the attorney that contains all of the requirements under HIPAA;

or

3. A court order for the release of the requested information.

Any requests for psychiatric records of a student, staff, or faculty member should be directed to the Director of the Counseling Center.

Requests for all other medical records of a student, staff, or faculty member should be directed to the Director of Health Services.

In all cases, a copy of the subpoena should be forwarded to the Office of University Counsel.

D. Law Enforcement Records

Subpoenas requesting law enforcement records of a student, staff, or faculty member should be directed to the Director of Public Safety. A copy should be forwarded to the Office of University Counsel.

Family Educational Rights & Privacy Act (FERPA)

FERPA is a federal law that allows present or former students access to educational records of the student, and provides basic privacy protections for these records. It is important that the person responding to such a subpoena be able to distinguish between educational and non-educational records. There are specific steps that must be taken when responding to subpoenas requesting educational records. FERPA specifically requires that the University make reasonable efforts to notify the student whose records are being sought of the subpoena and the intended date of compliance, prior to complying with the subpoena.

Sending notice (by certified first class mail, return receipt requested) to a student's last known address will generally satisfy FERPA's notification requirements. Although FERPA doesn't specify the exact amount of time an institution must give a student before responding to a subpoena, in order to preserve the best interests of the student, it is generally not appropriate to give a student less than ten working days' notice. The letter notifying the student should explain that student has the right to take appropriate legal action to prevent the University from complying with the subpoena and that in the absence of such action by the student (within the determined time frame), the University will disclose the requested documents. If a student is able to quash a subpoena, the University is prohibited from disclosing the records.

If a student has signed a release/consent form prior to a subpoena being issued, the notification requirement is waived. A student's consent must be in writing. It must be signed, dated, and include the following information:

1. Description of the specific records to be disclosed;
2. Purpose or purposes of the disclosure; and
3. Party or class of parties to whom the disclosure may be made.

In situations where a subpoena is accompanied by a court order instructing the University NOT to disclose the subpoena to the student, the University must comply with the order.

Health Insurance Portability and Accountability Act (HIPAA)

The Health Insurance Portability and Accountability Act (HIPAA) imposes numerous requirements on Tufts University concerning the use and disclosure of individual health information. This information, known as protected health information (PHI), includes virtually all current, past, or future information created or received by the University through its health care providers, health plans, and contractors. The term PHI does not generally include publicly available information, or information available or reported in a summarized or grouped manner.

Tufts University may disclose PHI in the course of any judicial or administrative proceeding in response to:

1. An order of a court or administrative tribunal, in which the University will only disclose the protected health information expressly authorized by such order; or
2. A lawfully issued subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:
   1. The University receives satisfactory assurance from the party seeking the information that reasonable efforts have been made to notify the person who is the subject of the PHI of the request; or
   2. The University receives satisfactory assurance from the party seeking the information that a qualified protective order has been secured.

Tufts University may disclose PHI in response to any lawful process described above without receiving satisfactory assurance, if the University itself makes reasonable efforts to provide notice to the patient or to seek a qualified protective order.

Satisfactory Assurance, for the purposes of responding to record requests, means receipt of a written statement and accompanying documentation demonstrating that:

1. The party requesting information has made a good faith attempt to provide written notice to the student, staff, or faculty member (or, if the student, staff, or faculty member's location is unknown, has mailed a notice to the subject's last know address);
2. The notice included sufficient information about the litigation or proceeding in which the PHI is requested to allow the student, staff, or faculty member the opportunity to raise an objection; and
3. The time for the student, staff, or faculty member to raise objections has elapsed, and no objections were filed or all objections filed have been resolved through the court process and the disclosures being sought are consistent with such resolution.