[Federal Register Volume 60, Number 10 (Tuesday, January 17, 1995)]
[Rules and Regulations]
[Pages 3464-3469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1000]




[[Page 3463]]

_______________________________________________________________________

Part III





Department of Education





_______________________________________________________________________



34 CFR Part 99



Family Educational Rights and Privacy; Final Rule

  Federal Register / Vol. 60, No. 10 / Tuesday, January 17, 1995 / 
Rules and Regulations   
[[Page 3464]] 

DEPARTMENT OF EDUCATION

34 CFR Part 99

RIN 1880-AA57


Family Educational Rights and Privacy

AGENCY: Department of Education.

ACTION: Final regulations.

-----------------------------------------------------------------------

SUMMARY: The Secretary amends the regulations implementing the Family 
Educational Rights and Privacy Act (FERPA), which is section 438 of the 
General Education Provisions Act. These amendments are needed to 
implement a provision of the Higher Education Amendments of 1992, which 
modified the conditions under which records of an institution's law 
enforcement unit are excluded from the definition of ``education 
records.'' As amended, FERPA excludes from the definition of 
``education records,'' and thereby from the restrictions and rights of 
access under FERPA, records that are maintained by a law enforcement 
unit of an educational agency or institution that were created by that 
unit for the purpose of law enforcement.

EFFECTIVE DATE: These regulations take effect either 45 days after 
publication in the Federal Register or later if the Congress takes 
certain adjournments. If you want to know the effective date of these 
regulations, call or write the Department of Education contact person. 
A document announcing the effective date will be published in the 
Federal Register.

FOR FURTHER INFORMATION CONTACT: Ellen Campbell, Family Policy 
Compliance Office, Office of Management, U.S. Department of Education, 
600 Independence Avenue, S.W., Washington, D.C. 20202-4605. Telephone 
(202) 260-3887. Individuals who use a telecommunications device for the 
deaf (TDD) may call the Federal Information Party Relay Service (FIRS) 
at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern time, Monday 
through Friday.
    Postsecondary institutions that have questions relative to any of 
the requirements in the Higher Education Act regarding disclosure of 
information about campus safety policies and procedures and campus 
crime statistics should contact Paula M. Husselmann or Kimberly L. Goto 
at (202) 708-7888.

SUPPLEMENTARY INFORMATION: On August 11 and December 14, 1993, the 
Secretary published two notices of proposed rulemaking (NPRMs) for 34 
CFR part 99 in the Federal Register (58 FR 42836-42837 and 58 FR 65298-
65300, respectively). The second NPRM did not change the proposed 
regulations but merely asked for additional public comment based on the 
response to the first NPRM.
    The proposed regulations define for the first time both ``law 
enforcement unit'' and ``disciplinary action or proceeding.'' In 
contrast to law enforcement unit records, the Department has been 
legally constrained to treat the records of a disciplinary action or 
proceeding as ``education records'' under FERPA (20 U.S.C. 1232g), that 
is, protected against non-consensual disclosure except in statutorily 
specified circumstances and subject to inspection and review by parents 
and eligible students. The Secretary proposed the definition of 
``disciplinary action or proceeding'' to help institutions distinguish 
disciplinary records from law enforcement unit records, which are 
excluded by statute from the definition of ``education records'' in the 
circumstances specified.
    Many of the public comments received on the first NPRM challenged 
the Department's position on this issue and expressed the view that 
records of institutional disciplinary proceedings taken against 
students accused of criminal and other non-academic misconduct should 
not be considered ``education records'' under FERPA and should be 
available to the public even without the parent's or student's consent. 
This issue, which has been the subject of recent media attention, took 
precedence over the issue of law enforcement unit records in the 
comment process. The Secretary sought additional public comment on the 
issue because it raised important and sensitive concerns about campus 
crime as well as students' need for privacy and access to records in 
the educational process.
    The Secretary remains legally constrained to conclude that records 
of an institution's disciplinary action or proceeding are ``education 
records'' under FERPA, not law enforcement unit records, and that 
excluding these records from the definition of ``education records'' 
can be accomplished only through a statutory amendment of FERPA by 
Congress. In support of this view, Congress enacted in 1990 a new 
statutory provision permitting non-consensual disclosure of only the 
results of disciplinary proceedings conducted by postsecondary 
institutions; the disclosure is limited to the alleged victim of a 
crime of violence as defined in the United States Code and not to the 
public generally. However, the Secretary also recognizes that the issue 
of full public access to disciplinary hearing records concerning 
criminal and other non-academic misconduct is an important part of the 
ongoing debate concerning safety on college campuses and believes that, 
given the competing interests involved, these issues need to be aired 
and argued in the legislative arena. Therefore, the Secretary has 
notified Congress of the need to address this issue and has offered to 
work with Congress in drafting an appropriate FERPA amendment that 
identifies and balances these interests at various education levels.

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRMs to comment, 
approximately 150 parties submitted comments on the proposed 
regulations. An analysis of the comments and changes in the regulations 
since publication of the NPRMs follows. Substantive issues are 
discussed under the section of the regulations to which they pertain.

Section 99.3  What definitions apply to these regulations? Definition 
of ``Disciplinary action or proceeding.''

    Comments: A majority of commenters approved of the Secretary's 
effort to effectively clarify the distinction between disciplinary 
records and law enforcement unit records. Those commenters stated that 
to allow the release of student disciplinary records to the public 
without consent would compromise what they believe to be the 
fundamental educational mission of the campus judicial process. Several 
commenters also stated that if FERPA were amended to allow such 
disclosures, institutions would have to amend their disciplinary 
procedures to incorporate greater due process protections. These 
commenters, mostly officials at postsecondary institutions, argued that 
campus judicial systems have been effective in responding to violations 
of institutional policy because of the privacy protections afforded to 
students by FERPA.
    A substantial minority, however, disagreed and stated that 
disciplinary records relating to criminal and other non-academic 
conduct should not be treated as ``education records.'' They argued 
that postsecondary institutions have used FERPA to evade efforts by the 
public to gain access to information about crime on campuses. These 
commenters questioned the statement in the NPRMs that the Department 
has always considered records relating to an institution's internal 
proceedings that deal with violations of its own rules and standards of 
student conduct as [[Page 3465]] ``education records'' under FERPA. The 
commenters believe that the Department's position in this matter 
represents an effort to circumvent the recent State court ruling, Red & 
Black Publishing Co. v. Board of Regents, 427 S.E.2d 257, 261 (Ga. 
1993), which considered records of a disciplinary action against a 
student fraternity outside the definition of ``education records'' and, 
thus, outside the privacy protections of FERPA. Several commenters also 
requested that the proposed definition of ``disciplinary action or 
proceeding'' be changed to include only violations of academically-
related rules and that disciplinary action taken against a student for 
criminal acts be excluded.
    Discussion: The Secretary has carefully analyzed the statutory and 
regulatory authority to address these concerns. Based on the broad 
definition of ``education records,'' which includes those records, 
files, documents, and other materials that contain information directly 
related to a student, except those that are specifically excluded by 
statute, all disciplinary records, including those related to non-
academic or criminal misconduct by students, are ``education records'' 
subject to FERPA. It is noted that Red & Black Publishing Co. v. Board 
of Regents concerned records of a student ``organization court,'' which 
disciplined a student organization (fraternity) for a rules violation, 
and did not concern disciplinary action against an individual student. 
More recently, another State court ruled that FERPA prevented a 
university from releasing to the media personally identifiable 
information from student disciplinary records without consent. 
Shreveport Professional Chapter of the Society of Professional 
Journalists v. Louisiana State University in Shreveport, Case No. 
393,332, First Judicial District Court, Caddo Parish, LA, (March 4, 
1994). Although the Secretary is equally concerned with the problem of 
crime on campus, it is clear that only Congress has the authority to 
change the statutory provisions of FERPA to permit disclosure of 
disciplinary records without prior consent.
    Nevertheless, because crime on our Nation's college campuses has 
escalated since 1974 when FERPA was enacted, the Secretary has notified 
Congress of the need to address this important issue. The Congress may 
find that public access to disciplinary records concerning criminal and 
other non-academic misconduct is an appropriate response to the problem 
of maintaining safe college campuses, and the Secretary has offered to 
work with Congress in writing an appropriate amendment to FERPA.
    The Secretary received very few comments from State and local 
educational officials on how the proposed definition of ``disciplinary 
action or proceeding'' might affect elementary and secondary schools. 
Issues regarding the privacy of minor students and their families on 
the elementary and secondary level may require different treatment than 
those of postsecondary students. At this time, FERPA is consistent with 
those State laws that protect information regarding juvenile offenders.
    Change: None.
    Comments: Even among those commenters who approved of the proposed 
definition of ``disciplinary action or proceeding,'' several 
postsecondary officials noted that it is important that institutions be 
able to tell victims the outcome of a disciplinary proceeding regarding 
their assailant.
    Discussion: Section 99.31(a)(13) of the FERPA regulations, which 
implements 20 U.S.C. 1232g(b)(6) of the statute, permits postsecondary 
institutions to disclose to an alleged victim of a crime of violence, 
as defined in the United States Code, the results of any disciplinary 
proceeding conducted by the institution against the alleged 
perpetrator. As noted earlier, this specific statutory exception to the 
prior written consent rule, enacted in 1990 as part of the Student 
Right-to-Know and Campus Security Act, demonstrates Congress' view that 
disciplinary records are education records under FERPA. Additionally, 
34 CFR 668.47(a)(12)(vi) (Student Assistance General Provisions) 
provides that in cases of an alleged sex offense both the accuser and 
the accused shall be informed of the outcome of any institutional 
disciplinary proceeding at the postsecondary level. On the elementary 
and secondary level, Congress has made no changes to FERPA that would 
allow a school official to disclose information relating to a 
disciplinary action without the prior consent of that student's 
parents, to an alleged victim or the alleged victim's parents. The 
Secretary has no authority to change these statutory provisions to 
provide for disclosure of information from disciplinary records other 
than in the circumstances identified.
    Change: None.
    Comments: Some commenters noted that conduct that would constitute 
a criminal violation should not be kept confidential as part of a 
campus disciplinary proceeding and that disciplinary hearings should be 
open to the public. In contrast, a number of school officials stated 
that to allow disciplinary hearings to be open to the public would 
substitute those processes for criminal proceedings, which would negate 
a long-standing separation of an on-campus disciplinary system from the 
criminal justice system.
    Discussion: FERPA does not prevent an institution from opening 
disciplinary proceedings to the public. Rather, FERPA prevents the non-
consensual disclosure of education records or personally identifiable 
information from ``education records,'' unless the disclosure meets one 
or more of the statutory conditions for non-consensual disclosure. 
Schools routinely restrict access to disciplinary proceedings to those 
school officials with a ``legitimate educational interest,'' which is 
the first condition for non-consensual disclosure under section (b)(1) 
of the statute, because information from ``education records'' is 
frequently disclosed in a disciplinary hearing.
    As discussed above, the Secretary has advised and offered to work 
with Congress toward an appropriate solution to the concern about 
campus safety issues in relation to FERPA.
    Change: None.
    Comments: Several commenters expressed concern that, as parents, 
they would want to know how many sexual assaults had been reported at 
the schools to which their children had applied or at which their 
children were attending. These commenters believed that disciplinary 
records related to criminal conduct should not be considered 
``education records.''
    Discussion: Parents and students at the postsecondary level may 
currently obtain information about the type and the amount of crime on 
college campuses under 34 CFR 668.47(a)(6) (Student Assistance General 
Provisions), which implements the Student Right-to-Know and Campus 
Security Act. These provisions require postsecondary institutions to 
report annually statistics concerning the occurrence on campus of 
certain crimes, including sexual assaults, that have been reported to 
local police agencies and to any official of the institution who has 
significant responsibility for student and campus activities. The 
Secretary is enforcing these requirements fully and believes that they 
will make students--and their parents--aware of the nature and the 
amount of crime on any college campus they may attend or which they are 
considering attending.
    Change: None.
    Comments: One commenter noted that the definition of ``disciplinary 
action or proceeding'' does not specifically state that disciplinary 
[[Page 3466]] records are education records, thus leaving open to 
interpretation whether they are ``education records'' subject to FERPA. 
Another commenter suggested that the definition be changed to include 
all appeals of the initial adjudication or imposition of sanctions.
    Discussion: Under FERPA, the statutory definition of ``education 
records'' is all inclusive, covering ``those records, files, documents, 
and other materials, which (i) contain information directly related to 
a student; and (ii) are maintained by an educational agency or 
institution, or by a person acting for such agency or institution.'' 20 
U.S.C. 1232g(a)(4)(A). The only types of records specifically 
identified in FERPA are those that are specifically excluded from the 
definition of ``education records,'' such as law enforcement unit 
records. 20 U.S.C. 1232g(a)(4)(B). FERPA does not list, identify, or 
single out any particular type of materials or documents as ``education 
records.'' Consequently, the regulations explain that records of a law 
enforcement unit do not include or mean disciplinary records. That is, 
they are not excluded from the definition of ``education records'' 
under FERPA.
    Change: None.

Section 99.8  What provisions apply to records of a law enforcement 
unit?

    Definition of ``law enforcement unit''.
    Comments: One commenter, a State assistant attorney general, 
interpreted the proposed rules to mean that if a school principal or 
dean maintained a record on a student in a discipline file it would be 
an ``education record'' protected by FERPA, but that the same record 
maintained by the institution's law enforcement unit would not be 
protected by FERPA and could be disclosed to an outside party directly 
from the campus law enforcement unit. A school official also commented 
that, under the proposed definition, it is not clear whether using law 
enforcement unit records during a disciplinary proceeding would render 
the records ``disciplinary records'' and thus ``education records'' 
subject to FERPA. A commenter from a State educational agency asked for 
clarification on whether a record of a law enforcement unit can lose 
its status and become an ``education record.''
    Discussion: FERPA was amended by Congress to exempt from the 
definition of ``education records'' those records that are created by a 
law enforcement unit for a law enforcement purpose and maintained by 
that law enforcement unit, thus allowing educational agencies and 
institutions to disclose these records publicly without obtaining prior 
written consent. If a law enforcement unit of an institution creates a 
record for law enforcement purposes and provides a copy of that record 
to a dean, principal, or other school official for use in a 
disciplinary proceeding, that copy is an ``education record'' subject 
to FERPA if it is maintained by the dean, principal, or other school 
official and not the law enforcement unit. The original document 
created and maintained by the law enforcement unit is not an 
``education record'' and does not become an ``education record'' merely 
because it was shared with another component of the institution.
    Change: None.
    Comments: A few commenters said that the proposed definition of 
``law enforcement unit'' was too broad and could encompass offices or 
components within an institution that may maintain information directly 
related to students but that are responsible for the institution's 
compliance with Federal civil rights laws, financial aid regulations, 
hiring requirements, etc., which should not be considered law 
enforcement activities under FERPA. It was also suggested that the 
definition be limited to enforcement of ``criminal'' laws.
    Discussion: The proposed definition is intended to cover that part 
of the institution which is responsible for providing and maintaining a 
safe and orderly school environment by monitoring and dealing with the 
conduct of individuals, not the institution itself. After considering 
these comments, the Secretary agrees that the definition is potentially 
too broad and may encompass functions of the institution, such as an 
office of legal counsel, that should not be included. However, the 
Secretary believes that adding ``criminal'' to the definition might 
unnecessarily restrict or confuse school officials as to their 
responsibilities for ensuring school safety.
    Changes: The Secretary has revised the definition of ``law 
enforcement unit'' by adding a new provision to clarify that it 
pertains to those individuals or parts of the institution responsible 
for maintaining the safety and security of school surroundings and for 
enforcing laws against individuals and organizations within the school 
community and not those responsible for the institution's own 
compliance with various laws.
    Comments: Several commenters associated with postsecondary 
institutions stated that they did not believe, for various reasons, 
that their campus security departments were ``law enforcement units'' 
under FERPA and requested clarification on the status of the records of 
what they considered a ``non-law enforcement'' campus security 
department. Some commenters also noted that a majority of colleges and 
universities do not employ ``campus police officers'' who possess 
police authority or perform official police functions. Instead, many 
institutions employ non-commissioned ``campus security officers'' whose 
main function is to keep the peace and enforce institutional policies. 
Another commenter noted that the definition of ``law enforcement unit'' 
was potentially confusing because student conduct code offenses are 
considered violations of the ``law'' and that an office that is 
responsible for student conduct might be considered a ``law enforcement 
unit'' under the definition.
    Discussion: The Secretary has taken into consideration these 
comments and has revised the regulations to clarify that the term ``law 
enforcement unit'' under FERPA includes ``a unit of commissioned police 
officers or non-commissioned security guards.'' That is, security 
departments such as those described by the commenters would be 
considered ``law enforcement units'' if they are officially authorized 
or designated by the institutions to carry out the functions listed in 
the regulatory definition, regardless of whether the individuals of 
that unit are commissioned police officers. The second part of the 
definition of law enforcement unit makes it clear that a security 
department retains its status as a ``law enforcement unit'' even if it 
also has responsibility for enforcing the institution's code of student 
conduct.
    Change: The definition has been revised to state that it applies to 
units consisting of commissioned police officers as well as non-
commissioned security guards.
    Comments: One commenter, an official at a major university, stated 
that the law enforcement unit at that institution generates both 
``crime reports,'' which it considers public documents, and ``incident 
reports,'' which are treated as education records and referred to the 
student affairs office for disciplinary purposes. The official further 
stated that he believes that the functions of the law enforcement unit 
and the functions of the student affairs office charged with 
administering the student discipline system are intertwined at his 
institution as they are at other institutions.
    Discussion: If an institution has a security unit or individual 
with a dual role or function of enforcing institutional rules of 
conduct related to safety and security and referring 
[[Page 3467]] potential or alleged violations of law to government 
authorities, that unit or individual would be considered a ``law 
enforcement unit'' under FERPA. Under the new amendment, records of 
that unit that were created and maintained for a law enforcement 
purpose are considered records of a law enforcement unit and, 
therefore, excluded from the definition of ``education records'' under 
FERPA.
    The Secretary has revised the proposed regulations to clarify that 
where a law enforcement unit also performs non-law enforcement 
functions, the records created and maintained by that unit are 
considered law enforcement unit records, even where those records were 
created for dual purposes (e.g. for both law enforcement and 
disciplinary purposes). Only records that were created and maintained 
by the unit exclusively for a non-law enforcement purpose will not be 
considered records of a law enforcement unit. For example, if a campus 
security unit initiates an investigation into an incident on campus 
relating to a possible violation of law or the student conduct code, 
the record created and maintained by the unit in connection with this 
investigation is a law enforcement unit record, whether or not it is 
ever referred to the local police authorities. If, however, the same 
unit or individual responsible for law enforcement investigates an 
incident for the purposes of internal disciplinary actions and creates 
a record exclusively for the purpose of a possible disciplinary action 
against the student, that record would not be considered a record of a 
law enforcement unit and would be an ``education record'' subject to 
FERPA. It should be stressed that the Secretary expects such occasions 
to be very rare, especially with incidents involving criminal conduct 
by students at postsecondary institutions.
    Postsecondary institution officials should note also that when they 
decide to refer a matter to a disciplinary committee rather than to the 
institution's own law enforcement unit or directly to governmental law 
enforcement authorities, the institution is not relieved of its 
responsibilities for complying with the reporting requirements of the 
Student Right-to-Know and Campus Security Act, as codified in 34 CFR 
668.47(a)(6) (Student Assistance General Provisions).
    Changes: The definition has been clarified by the insertion of the 
word ``exclusively'' to indicate records created and maintained 
exclusively for internal disciplinary purposes are not law enforcement 
unit records and are, therefore, not excluded from the definition of 
``education records.''
    Comments: One commenter suggested that the regulations be changed 
to allow institutions that may not have a law enforcement unit to 
publicly disclose records that relate to a criminal act but which are 
not necessarily related to a disciplinary action.
    Another commenter expressed concern that, because most public 
elementary and secondary schools do not have a ``law enforcement 
unit,'' an individual administrator could be considered a ``law 
enforcement unit'' under the proposed definition. The commenter 
believed this dual role of school administrator and law enforcement 
official could pose a potential problem for abuse because of his or her 
access to both education records and law enforcement unit records. He 
stated that, in such a circumstance, a school official could 
``essentially confer or remove parents' rights of access to records, or 
maintain or eliminate confidentiality with respect to certain records 
by choosing to characterize documents as education records or records 
of a law enforcement unit.''
    Discussion: The Secretary has carefully considered whether 
provisions should be included in the regulations to address these 
concerns. The definition of ``law enforcement unit'' has been clarified 
by adding the term ``officially'' to describe an office, department, or 
individual who is authorized or designated by the agency or institution 
to perform law enforcement unit functions. Additionally, a subsection 
has been added to the definition to further describe a ``law 
enforcement unit'' as an entity or individual whose function is to 
maintain the safety and security of the institution.
    The inclusion of the term ``individual'' is intended to permit 
small educational agencies and institutions to designate a single 
individual responsible for ``law enforcement'' and related safety and 
security functions. The records created and maintained by that 
individual for a law enforcement purpose may be disclosed, without 
prior consent of the parent or eligible student to whom the records 
relate, and the parent or eligible student would have no right to 
inspect and review the records under FERPA. The Secretary believes that 
the benefits gained by safer school surroundings outweigh any potential 
problems for abuse of the privacy or access rights under FERPA that 
might occur by including ``individual'' in the definition.
    However, the Secretary does not have the authority to change the 
regulations to allow institutions that do not have a law enforcement 
unit to publicly disclose records that relate to a criminal act. Such a 
change would have to be made by Congress.
    Change: The Secretary has revised the definition of ``law 
enforcement unit'' to include only entities or individuals officially 
authorized or designated by an agency or institution to enforce local 
or State law, or to refer to appropriate authorities a matter for 
enforcement of these laws, or to maintain the physical security and 
safety of the agency or institution.
    Comments: A couple of commenters from State departments of 
education noted that the definition of law enforcement unit should be 
clarified to include a city police officer hired by a local educational 
agency or through special arrangements with local law enforcement 
authorities.
    Discussion: The Secretary believes that the definition of ``law 
enforcement unit'' which includes the term ``individual,'' as discussed 
in the previous comment, will allow schools to designate a single 
individual responsible for ``law enforcement'' and related safety and 
security functions. However, educational agencies and institutions 
should also be aware of the requirement under Sec. 99.6 of the FERPA 
regulations to adopt a policy regarding how the agency or institution 
meets the requirements of FERPA. In that policy, educational agencies 
and institutions are required to include a specification of the 
criteria for determining which parties are school officials and what 
the agency or institution considers to be a legitimate educational 
interest. If agencies and institutions have a policy of disclosing 
information from education records to officials of their own law 
enforcement unit, the officials of that unit must be designated under 
the school's FERPA policy as school officials with a legitimate 
educational interest. The Department can provide further guidance on 
the formulation of such a policy.
    The Secretary encourages educational agencies and institutions that 
do not have a separate law enforcement unit to develop working 
relationships with local police authorities. However, FERPA currently 
prohibits schools from disclosing information from education records to 
local police authorities absent the prior written consent of parents or 
a lawfully issued subpoena or court order.
    Changes: None.
    Comment: One commenter expressed concern that the proposed 
regulations do not permit officials of an institution's law enforcement 
unit to disclose [[Page 3468]] information that the unit had obtained 
from a student's education records to local police or prosecutors. He 
believes that the regulations, as proposed, would impede the 
institution's ability to investigate students suspected of falsified 
time sheets, transcript forgery, computer fraud, and similar crimes 
that may be demonstrated by documents considered ``education records'' 
under FERPA.
    Discussion: An institution may disclose education records to an 
outside law enforcement agency without consent to comply with a 
judicial order or lawfully issued subpoena. The Secretary does not have 
the statutory or regulatory authority to permit the non-consensual 
disclosure of education records to outside law enforcement authorities 
in other circumstances. Any changes to this provision would have to be 
made by Congress.
    Changes: None.
    Comment: The same commenter proposed that Sec. 99.8(c)(1) be 
changed by replacing ``contacting its law enforcement unit, orally or 
in writing'' with ``disclosing education records or information from 
education records to its law enforcement unit.''
    Discussion: This provision was included in order to clarify that 
the Secretary would not consider an institution ``contacting'' its own 
law enforcement officials regarding suspected criminal activity to 
involve necessarily the disclosure of information from an education 
record, which the institution would not be permitted to do under FERPA 
unless those individuals had been designated in the school's FERPA 
policy as ``school officials'' with legitimate educational interest in 
accordance with 34 CFR 99.6.
    Additionally, as referenced in the previous comment, FERPA does not 
permit any party, including the institution's own law enforcement unit, 
that has received information from education records to redisclose that 
information without the prior consent of the parent or eligible student 
or in accordance with one of the exceptions listed under 34 CFR 99.31, 
which includes disclosure in compliance with a judicial order or 
lawfully issued subpoena.
    Changes: None.
    Comments: A commenter from a large metropolitan school district 
agreed that exempting law enforcement unit records from the definition 
of ``education records'' promotes cooperation between local police 
agencies and local educational agencies in their efforts to reduce 
violence on school campuses. He further stated, however, that to regard 
disciplinary records as ``education records,'' which cannot be 
disclosed to the school district's own law enforcement unit, obstructs 
a law enforcement unit official's ability to maintain a safe school 
environment. In contrast, a commenter from a State educational agency, 
who agreed with the Secretary's proposed regulatory definition of ``law 
enforcement unit,'' stated that the proposed change would allow schools 
to disclose to the public records created and maintained by school law 
enforcement units. He further noted, without explanation, that the 
change would assist public schools in working with local law 
enforcement authorities and other agencies to provide the best 
education for students in a safe environment conducive to learning.
    Discussion: With regard to the first commenter's concern that FERPA 
prevents the disclosure of information from disciplinary records to the 
school district's designated law enforcement unit, as discussed in the 
previous comment section, FERPA does not prevent such a disclosure if 
the officials of the law enforcement unit have been designated as 
``school officials'' with a legitimate educational interest under the 
district's student records policy, as required by 34 CFR 99.6. However, 
FERPA does prohibit an educational agency or institution from 
disclosing information from education records, including information 
from disciplinary records, to an outside, governmental law enforcement 
authority, except in certain circumstances such as in response to a 
judicial order or lawfully issued subpoena, provided notice 
requirements of Sec. 99.31(a)(9) have been met. As previously noted, 
the Secretary does not have the statutory or regulatory authority to 
permit the non-consensual disclosure of information from education 
records, such as disciplinary records, to third parties, including 
governmental law enforcement authorities.
    Changes: None.
    Comments: A few commenters noted that students who are victims of 
crime should have a right to know about the progress of the 
investigation of their cases. In contrast, several commenters suggested 
that information regarding active criminal investigations be protected 
from disclosure until the investigations have been closed or 
adjudicated.
    Discussion: The Secretary has considered these comments but 
believes that because agencies and institutions are permitted, not 
required, by FERPA to publicly disclose information from law 
enforcement unit records, schools should develop their own policies 
with regard to if and when they will disclose the information.
    Changes: None.

Paperwork Reduction Act of 1980

    These proposed regulations have been examined under the Paperwork 
Reduction Act of 1980 and have been found to contain no information 
collection requirements.

Assessment of Educational Impact

    In the NPRMs, the Secretary requested comments on whether the 
proposed regulations would require transmission of information that is 
being gathered by or is available from any other agency or authority of 
the United States.
    Based on the response to the NPRMs and on its own review, the 
Department has determined that the regulations in this document do not 
require transmission of information that is being gathered by or is 
available from any other agency or authority of the United States.

List of Subjects in 34 CFR Part 99

    Administrative practice and procedure, Education, Family 
educational rights, Privacy, Parents, Reporting and recordkeeping 
requirements, Students.

    Dated: January 10, 1995
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number does not apply.)

    The Secretary amends Part 99 of Title 34 of the Code of Federal 
Regulations as follows:

PART 99--FAMILY EDUCATIONAL RIGHTS AND PRIVACY

    1. The authority citation for part 99 continues to read as follows: 
Authority: 20 U.S.C. 1232g, unless otherwise noted.
    2. Section 99.3 is amended by republishing the introductory text of 
paragraph (b) and revising paragraph (b)(2) in the definition of 
``Education records'' and by adding a new definition of ``Disciplinary 
action or proceeding'' in alphabetical order to read as follows:


Sec. 99.3  What definitions apply to these regulations?

* * * * *
    Disciplinary action or proceeding means the investigation, 
adjudication, or imposition of sanctions by an educational agency or 
institution with respect to an infraction or violation of the internal 
rules of conduct applicable to students of the agency or institution.
* * * * *
    Education records * * * [[Page 3469]] 
    (b) The term does not include:
* * * * *
    (2) Records of the law enforcement unit of an educational agency or 
institution, subject to the provisions of Sec. 99.8.
* * * * *
    3. A new Sec. 99.8 is added to subpart A to read as follows:


Sec. 99.8  What provisions apply to records of a law enforcement unit?

    (a)(1) Law enforcement unit means any individual, office, 
department, division, or other component of an educational agency or 
institution, such as a unit of commissioned police officers or non-
commissioned security guards, that is officially authorized or 
designated by that agency or institution to--
    (i) Enforce any local, State, or Federal law, or refer to 
appropriate authorities a matter for enforcement of any local, State, 
or Federal law against any individual or organization other than the 
agency or institution itself; or
    (ii) Maintain the physical security and safety of the agency or 
institution.
    (2) A component of an educational agency or institution does not 
lose its status as a law enforcement unit if it also performs other, 
non-law enforcement functions for the agency or institution, including 
investigation of incidents or conduct that constitutes or leads to a 
disciplinary action or proceedings against the student.
    (b)(1) Records of a law enforcement unit means those records, 
files, documents, and other materials that are--
    (i) Created by a law enforcement unit;
    (ii) Created for a law enforcement purpose; and
    (iii) Maintained by the law enforcement unit.
    (2) Records of a law enforcement unit does not mean--
    (i) Records created by a law enforcement unit for a law enforcement 
purpose that are maintained by a component of the educational agency or 
institution other than the law enforcement unit; or
    (ii) Records created and maintained by a law enforcement unit 
exclusively for a non-law enforcement purpose, such as a disciplinary 
action or proceeding conducted by the educational agency or 
institution.
    (c)(1) Nothing in the Act prohibits an educational agency or 
institution from contacting its law enforcement unit, orally or in 
writing, for the purpose of asking that unit to investigate a possible 
violation of, or to enforce, any local, State, or Federal law.
    (2) Education records, and personally identifiable information 
contained in education records, do not lose their status as education 
records and remain subject to the Act, including the disclosure 
provisions of Sec. 99.30, while in the possession of the law 
enforcement unit.
    (d) The Act neither requires nor prohibits the disclosure by an 
educational agency or institution of its law enforcement unit records.

(Authority: 20 U.S.C. 1232g(a)(4)(B)(ii))

[FR Doc. 95-1000 Filed 1-13-95; 8:45 am]
BILLING CODE 4000-01-P