[Federal Register Volume 61, Number 226 (Thursday, November 21, 1996)]
[Rules and Regulations]
[Pages 59292-59298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29746]
[[Page 59291]]
_______________________________________________________________________
Part III
Department of Education
_______________________________________________________________________
34 CFR Part 99
Family Educational Rights and Privacy; Final Rule
Federal Register / Vol. 61, No. 226 / Thursday, November 21, 1996 /
Rules and Regulations
[[Page 59292]]
DEPARTMENT OF EDUCATION
34 CFR Part 99
RIN 1880-AA65
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). The amendments are needed
to implement section 249 of the Improving America's Schools Act of 1994
(IASA) (Pub. L. 103-382, enacted October 20, 1994), to eliminate
unnecessary requirements, reduce regulatory burden, and incorporate
several technical changes.
EFFECTIVE DATE: These regulations take effect December 23, 1996.
FOR FURTHER INFORMATION CONTACT: Ellen Campbell, U.S. Department of
Education, 600 Independence Avenue, SW., Washington, DC 20202-4605.
Telephone: (202) 260-3887. Individuals who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern
time, Monday through Friday.
SUPPLEMENTARY INFORMATION: On March 14, 1996, the Secretary published a
notice of proposed rulemaking (NPRM) for 34 CFR part 99 in the Federal
Register (61 FR 10664-10669). The preamble to the NPRM included a
summary and discussion of the 1994 amendments and other major issues
that were addressed in the proposed regulations.
These regulations have been reviewed and revised in accordance with
the Department's ``Principles for Regulating,'' which were developed to
ensure that the Department regulates in the most flexible, most
equitable, and least burdensome way possible. These principles advance
the regulatory reinvention and customer service objectives of the
Administration's National Performance Review and are essential to an
effective partnership with States and localities. The Secretary amends
these regulations because he believes they are necessary to implement
the law and give the greatest flexibility to educational agencies and
institutions. In addition, the regulations minimize burden while
protecting parents' and students' rights.
The final regulations include changes made to the statute by the
Improving America's Schools Act of 1994 (IASA). The IASA amended FERPA
so that State educational agencies are required to afford parents
access to education records they maintain. The IASA also amended FERPA
to permit nonconsensual disclosures of education records to officials
in the State juvenile justice system as permitted by State law and, in
certain circumstances, to permit the nonconsensual disclosure of
information regarding disciplinary action taken against a student for
behavior that posed a significant risk to the student or others.
Additionally, these regulations reflect the Department's effort to
reduce unnecessary regulatory burdens. In this regard, the Department
is removing the nonstatutory requirement that schools adopt a formal
written student records policy. Instead, schools will now be required
to include additional information in the annual notification of rights,
which is required by statute, to ensure that parents are effectively
notified of their rights and how to pursue them.
In reviewing the NPRM with respect to the issue of disclosing
education records without consent pursuant to subpoenas and court
orders, the Secretary has concluded that the language in this provision
of the regulations should be revised to highlight that notification to
the parent or eligible student of a subpoena or judicial order allows
the parent or student the opportunity to seek protective action to
prevent re-disclosures. Also, the Secretary clarifies that if an
educational agency or institution initiates legal action against a
parent or student, the records that can be disclosed are those records
of that student that are relevant to the action. These additions are
not intended to change the meaning of the regulatory requirements as
published in the NPRM, but are merely a clarification of the
Department's position on this issue. Changes made in response to the
public comments on the NPRM are discussed in the following section.
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, twenty-eight
(28) parties submitted comments on the proposed regulations. An
analysis of the public comments and of the changes in the regulations
since publication of the NPRM follows. Substantive issues are discussed
under the section of the regulations to which they pertain. Suggested
changes and comments outside the scope of the NPRM are not addressed
because the Secretary lacks the statutory authority to make the
changes.
Annual Notification of Rights (Sec. 99.7)
Comments: Seven commenters submitted letters in support of the
proposal to remove the requirement that educational agencies and
institutions adopt student records policies. One commenter stated that
the proposed change would not only lessen the burden on schools, but
would facilitate communication between the schools and parents or
eligible students. This commenter further stated that the cost
associated with the change would not be significant because the school
district updates its notices regardless of statutory requirements.
Another commenter, representing a State educational agency (SEA),
stated that the proposed changes would ``be of benefit to parents.''
Another commenter representing a large public university stated that
``the flexibility offered by not requiring having such a [student
records] policy is a laudable goal * * *. A move toward that type of
freedom is a positive one.''
Six commenters opposed the proposed change. One commenter stated
that the current requirements are not burdensome. Two commenters noted
that the policy is helpful in educating school officials about FERPA
requirements and that the change in the requirements would be
burdensome on schools because they would incur costs to publish a
longer notification.
Discussion: The Secretary's purpose in removing the requirement
that schools maintain a policy is twofold. Specifically, the Secretary
believes that this change will help to ensure that parents and eligible
students receive more effective notification of their rights under the
law, including how to pursue those rights. Second, the Secretary hopes
that the change will afford educational agencies and institutions
greater flexibility by removing requirements that are not necessary to
implement the law.
With respect to those commenters who noted that the student records
policy is helpful in educating school officials about FERPA, the
removal of the requirement that educational agencies or institutions
adopt a formal student records policy does not prevent schools from
maintaining a policy. The Department will continue to update and make
available a sample model student records policy for any educational
agencies and institutions that want to have a policy.
While the Secretary encourages educational agencies and
institutions to develop and utilize student records policies, he also
recognizes that the statute does not require that schools
[[Page 59293]]
have these policies. Because of this regulatory requirement, the
Department has had to investigate complaints alleging that the contents
of schools' student records policies did not meet the regulatory
requirements. Often, the Department found that the policies did not
comply.
The removal of the requirement to adopt a written policy aligns the
FERPA regulations more closely to the statute and gives educational
agencies and institutions flexibility regarding the content of their
student records policies. In addition, the amount of Department
resources spent on investigating complaints alleging violations of
regulatory requirements that are not based on statutory requirements
will be reduced.
In response to those comments that expressed concern regarding the
burden and cost of publishing additional information in an annual
notification, the Secretary has again reviewed the regulations. The
Secretary has determined that some of the information proposed to be
included in the annual notification is not necessary to meet the
statutory requirement. In particular, the Secretary has removed the
requirement that the notice list FERPA's exceptions to the prior
written consent provision. In addition, the Secretary will not require
that the annual notification specify the procedures for a hearing under
FERPA's amendment provision, as long as schools provide this
information to parents and eligible students seeking to amend education
records. Lastly, the Secretary will not require the annual notification
to include a reference to directory information.
The Department has created a model annual notification that is not
significantly longer than the previous annual notification. The model
is available from the address listed in the FOR FURTHER INFORMATION
CONTACT section of these regulations and is published as an appendix to
these regulations. The model is less than two 8\1/2\'' by 11'' pages in
length (single-spaced), minimizing any additional burden on an
institution. As noted in the NPRM, the Secretary will allow educational
agencies and institutions up to three years to transfer from the
current policy requirements and to implement the new requirements
concerning an annual notification.
Changes: The Secretary has removed proposed Sec. 99.7(a)(3)(ii) (B)
and (C), Sec. 99.7(a)(3)(iii), and Sec. 99.7(a)(3)(v). The remaining
provisions have been renumbered accordingly.
Effective Notification
Comment: One commenter requested that the regulations specify what
would be acceptable notification to individuals with disabilities or
those with limited English proficiency.
Discussion: The Secretary believes that each school is best able to
determine what would constitute notice that would be reasonably likely
to inform parents and eligible students whom it serves. The regulations
give schools flexibility to determine how to effectively notify
individuals with disabilities and those who have a primary or home
language other than English. Schools must provide notice consistent
with applicable civil rights laws. Effectively notifying individuals
with disabilities may include, for example, providing notice in
alternative formats such as audiotape, braille, computer diskette, or
large print, as appropriate. Ideally, schools would consult with
parents and eligible students in determining how best to provide them
with notice.
Changes: None.
Annual Requirement
Comment: One commenter questioned the requirement that an
educational agency or institution provide the notification annually.
This commenter suggested that notification be made once, when a student
first enters the school.
Discussion: The Secretary believes that requiring an annual
notification that is reasonably likely to inform parents and eligible
students of their rights strikes the proper balance between placing
minimal requirements on educational agencies and institutions and
ensuring that parents and students are effectively informed of their
rights. The Department does not require schools to individually notify
parents or eligible students of their rights, but only that they give
notice that is reasonably likely to inform the parents and students of
their rights.
Changes: None.
Right To Inspect and Review Education Records (Section 99.10)
Comments: Eleven SEAs submitted comments on the NPRM. Most
commenters agreed that the Secretary's proposed requirement that access
be provided within 45 days is reasonable. One commenter, while
generally in favor of the proposed changes, stated that the 45-day time
period was too long.
Discussion: Because most comments the Department received stated
that the 45-day requirement is reasonable and the statute requires that
LEAs respond to requests for access within 45 days, the Secretary
believes that making the response time consistent with the statutory
requirement for LEAs will be less confusing to parents, students, and
school officials.
Changes: None.
Costs Associated With Making Records Available
Comments: One commenter stated that SEAs would incur significant
costs producing records for review.
Discussion: The Secretary recognizes that there may be some
personnel and resource costs associated with affording access to
records. However, Sec. 99.11 of subpart B of the FERPA regulations
allows SEAs to charge a fee for a copy of education records that is
made for a parent or eligible student. This fee would cover most of the
nominal costs associated with making records available to parents and
eligible students.
Changes: None.
Duplicate Records
Comments: Two commenters suggested that SEAs should not be required
to provide access to records that are duplicates of records maintained
by an LEA.
Discussion: The requirement that SEAs provide access to education
records is statutory. Congress did not make an exception for duplicate
records. There is, therefore, no authority for the Department to limit
a parent's or eligible student's right to access records maintained by
an SEA, even if the records are duplicates of those records maintained
by an LEA.
Changes: None.
Prior Consent Provisions
Comments: Three commenters contended that FERPA's provisions
requiring the consent of the parent or eligible student prior to
disclosure of education records also should apply to records maintained
by SEAs, notwithstanding the source of the records.
Discussion: Congress only requires that SEAs comply with the access
provisions of FERPA. SEAs are not required to comply with any of the
other provisions of FERPA, such as the written consent requirement or
the notification requirement. Accordingly, the Secretary has no
authority to require SEAs to comply with FERPA's prior consent
provisions.
Changes: None.
SEAs and Annual Notification
Comments: Several commenters representing SEAs asked if the annual
[[Page 59294]]
notification requirement applies to SEAs and if state-wide notification
is required.
Discussion: As discussed in the preamble to the NPRM, FERPA does
not apply to SEAs in general. Rather, the only provision in FERPA that
applies to SEAs directly is the requirement that SEAs provide parents
and eligible students access to education records when so requested.
Accordingly, FERPA's notification requirement does not apply to an SEA,
unless the SEA is an educational agency or institution under Sec. 99.1
of this part.
Changes: None.
Foster Parents
Comments: One commenter was concerned that there was no proposed
provision addressing the rights of a foster parent to inspect and
review education records at an SEA.
Discussion: The regulations already define the term parent in
Sec. 99.3 to include ``a parent of a student and includes a natural
parent, a guardian, or an individual acting as a parent in the absence
of a parent or a guardian.'' Thus, foster parents who are acting as a
child's parent would have the rights afforded parents under FERPA with
respect to that child's education records.
Changes: None.
Prior Consent Not Required for Disclosures Pursuant to Court Orders and
Lawfully Issued Subpoenas (Section 99.31) Subpoenas of Other Issuing
Agencies
Comments: Three commenters noted that the NPRM omitted statutory
language that allows an educational institution to release education
records without notifying the student when an agency (other than a
court) issues a subpoena for a law enforcement purpose.
Discussion: The words ``or other issuing agency'' were
inadvertently excluded from the NPRM. The Department did not intend to
limit the application of this provision and has corrected the
regulations to reflect the statutory language.
Change: The words ``or other issuing agency'' have been added to
Sec. 99.31(a)(9)(ii)(B).
Implied Waiver of the Right To Consent
Comments: Three commenters requested that the Secretary include
regulations allowing an educational agency or institution to assume an
implied waiver of the right to consent to the disclosure of education
records to respond to a lawsuit filed by a parent or student against
the agency or institution.
Discussion: While FERPA does not directly address this issue, the
Department interprets FERPA to allow an educational agency or
institution to infer the parent's or student's implied waiver of the
right to consent to the disclosure of information from the student's
education records if the parent or student has sued the institution.
The Secretary believes this interpretation is sound because an
educational agency or institution must be able to defend itself if a
parent or student has initiated legal action against the agency or
institution. This interpretation, however, does not place a requirement
on educational agencies or institutions, and thus it is not included in
the regulations.
Changes: None.
Disclosure of Information from Disciplinary Records (Section 99.36)
Comment: One commenter asked if an educational agency or
institution may include information regarding disciplinary actions
taken against a student other than those for conduct that posed a
significant risk to the health or safety of the student or others in a
student's education records.
Discussion: Neither FERPA nor the regulations prevent an
educational agency or institution from maintaining any type of
education records that an agency or institution has deemed necessary or
appropriate to maintain. The new statutory provision, upon which the
new regulatory provision is based, merely clarifies that nothing in
FERPA prevents schools from maintaining, and disclosing under certain
circumstances, specific information regarding disciplinary action taken
against students.
Changes: None.
Health or Safety Emergency Exception
Comments: One commenter suggested that the new provision regarding
disciplinary records be placed in its own section of the regulations,
stating that Congress did not include this provision under the health
or safety emergency exception to FERPA's prior written consent
provision.
Discussion: The new provision governs disclosure of information
about a student's behavior that poses significant risk to that student
or other individuals. This new provision is closely related to, and
logically follows, the existing health or safety exception to the prior
written consent provision. The placement of the new provision in the
same subpart with the previous health or safety emergency exception
does not collapse the two provisions.
Changes: None.
Obligation To Disclose Information
Comments: A couple of commenters asked whether the FERPA provision
permitting the disclosure of information concerning disciplinary action
taken against a student for behavior that posed a significant risk to
that student or other individuals creates a legal obligation to
disclose this information, which would make educational agencies and
institutions liable if this information were not disclosed.
Discussion: These regulations do not require the disclosure of any
information from education records, except to the extent that the
regulations afford parents and eligible students the right to access
education records. Accordingly, the regulations do not create a legal
obligation to disclose information from a student's disciplinary
records under FERPA. Rather, the regulations give individual schools
the discretion to determine the circumstances under which it is
appropriate to disclose information.
Changes: None.
Behavior That Poses a Significant Risk
Comments: Some commenters suggested that the Department should
clarify what behavior would constitute ``behavior that posed a
significant risk'' and pointed out that a particular behavior at one
institution may be deemed acceptable, and at another be considered
putting the individual or others at ``significant risk.''
Discussion: The Secretary believes that defining a single standard
of what constitutes behavior that posed a significant risk would
restrict educational agencies and institutions from determining what is
appropriate based on specific circumstances found at individual
schools.
Change: None.
Transfer of Student Education Records
Comments: Three commenters suggested permitting nonconsensual
disclosure of information concerning disciplinary action taken against
a student for behavior that posed a significant risk to that student or
other individuals if the student has transferred to another school.
Discussion: FERPA has always permitted, under Sec. 99.31(a)(2),
nonconsensual disclosure of this information (and other education
records) in situations where students are seeking or intending to
enroll in another educational agency or institution. If a student has
been enrolled in the new institution for a period of time, the
Secretary interprets Sec. 99.31(a)(2) to permit educational agencies
and
[[Page 59295]]
institutions to send corrected education records, or additional
education records, to the new institution (if it has already sent
education records under this exception) as part of an original
disclosure.
Change: None.
Students With Disabilities
Comment: One commenter asked if the new provision permitting
nonconsensual disclosure of information concerning disciplinary action
applies to students with disabilities.
Discussion: FERPA applies to all education records equally, and
does not distinguish between the records of students with disabilities
and the records of other students. Moreover, the Secretary believes
that individual educational agencies and institutions are in the best
position to determine what information should be released in a
particular situation. However, if a complaint is filed, the Department,
through the Family Policy Compliance Office, would investigate the
complaint and make a final determination whether FERPA had been
violated.
Changes: None.
Disclosure of Information Concerning Juvenile Justice System (Section
99.38)
Comment: None.
Discussion: The Secretary believes that each school, working in
conjunction with State and local authorities, can best determine
whether a release of personally identifiable information from an
education record ``concerns the juvenile justice system's ability to
effectively serve a student prior to adjudication.'' Thus, the
regulations give schools flexibility in determining whether an
education record of a juvenile may be released without the prior
written consent of the parent.
Executive Order 12866
Assessment of Costs and Benefits
These final regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those determined by the
Secretary as necessary for administering this program effectively and
efficiently. Burdens specifically associated with information
collection requirements were identified and explained in the preamble
to the NPRM published on March 14, 1996. This discussion appeared under
the heading Paperwork Reduction Act of 1995 (61 FR 10666).
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, the Secretary has
determined that the benefits of the regulations justify the costs.
Summary of Potential Costs and Benefits
The potential costs and benefits of these final regulations are
discussed elsewhere in this preamble under the following heading:
Analysis of Comments and Changes.
Paperwork Reduction Act of 1995
Sections 99.7 and 99.32 contain information collection requirements
and have been approved by OMB under control number 1880-0508. Under the
Paperwork Reduction Act of 1995, no persons are required to respond to
a collection of information unless it displays a valid OMB control
number. The valid OMB control number assigned to the collection of
information in these final regulations is displayed at the end of the
affected sections of the regulations.
Assessment of Educational Impact
In the notice of proposed rulemaking, 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 proposed regulations 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, Information,
Privacy, Parents, Records, Reporting and recordkeeping requirements,
Students.
Dated: September 18, 1996.
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 99.1 is amended by removing paragraph (b), redesignating
paragraphs (c), (d), and (e) as paragraphs (b), (c), and (d),
respectively, and by revising paragraph (a) to read as follows:
Sec. 99.1 To which educational agencies or institutions do these
regulations apply?
(a) Except as otherwise noted in Sec. 99.10, this part applies to
an educational agency or institution to which funds have been made
available under any program administered by the Secretary, if--
(1) The educational institution provides educational services or
instruction, or both, to students; or
(2) The educational agency provides administrative control of or
direction of, or performs service functions for, public elementary or
secondary schools or postsecondary institutions.
* * * * *
Sec. 99.2 [Amended]
3. Section 99.2 is amended by removing the number ``438'' and
adding, in its place, the number ``444''.
4. Section 99.3 is amended by removing in the definition of ``Act''
the number ``438'' and adding, in its place, the number ``444'' and by
revising the definitions of ``Disclosure'' and ``Record'' to read as
follows:
Sec. 99.3 What definitions apply to these regulations?
* * * * *
Disclosure means to permit access to or the release, transfer, or
other communication of personally identifiable information contained in
education records to any party, by any means, including oral, written,
or electronic means.
* * * * *
Record means any information recorded in any way, including, but
not limited to, handwriting, print, computer media, video or audio
tape, film, microfilm, and microfiche.
* * * * *
Sec. 99.6 [Removed and reserved]
5. Section 99.6 is removed and reserved.
6. Section 99.7 is revised to read as follows:
Sec. 99.7 What must an educational agency or institution include in
its annual notification?
(a)(1) Each educational agency or institution shall annually notify
parents of students currently in attendance, or eligible students
currently in attendance, of their rights under the Act and this part.
[[Page 59296]]
(2) The notice must inform parents or eligible students that they
have the right to--
(i) Inspect and review the student's education records;
(ii) Seek amendment of the student's education records that the
parent or eligible student believes to be inaccurate, misleading, or
otherwise in violation of the student's privacy rights;
(iii) Consent to disclosures of personally identifiable information
contained in the student's education records, except to the extent that
the Act and Sec. 99.31 authorize disclosure without consent; and
(iv) File with the Department a complaint under Secs. 99.63 and
99.64 concerning alleged failures by the educational agency or
institution to comply with the requirements of the Act and this part.
(3) The notice must include all of the following:
(i) The procedure for exercising the right to inspect and review
education records.
(ii) The procedure for requesting amendment of records under
Sec. 99.20.
(iii) If the educational agency or institution has a policy of
disclosing education records under Sec. 99.31(a)(1), a specification of
criteria for determining who constitutes a school official and what
constitutes a legitimate educational interest.
(b) An educational agency or institution may provide this notice by
any means that are reasonably likely to inform the parents or eligible
students of their rights.
(1) An educational agency or institution shall effectively notify
parents or eligible students who are disabled.
(2) An agency or institution of elementary or secondary education
shall effectively notify parents who have a primary or home language
other than English.
(Approved by the Office of Management and Budget under control
number 1880-0508)
(Authority: 20 U.S.C. 1232g (e) and (f)).
7. Section 99.10 is amended by adding ``, or SEA or its component''
following the word ``institution'' in paragraphs (c) and (e) and by
revising paragraphs (a), (b), and (d), and the authority citation to
read as follows:
Sec. 99.10 What rights exist for a parent or eligible student to
inspect and review education records?
(a) Except as limited under Sec. 99.12, a parent or eligible
student must be given the opportunity to inspect and review the
student's education records. This provision applies to--
(1) Any educational agency or institution; and
(2) Any State educational agency (SEA) and its components.
(i) For the purposes of subpart B of this part, an SEA and its
components constitute an educational agency or institution.
(ii) An SEA and its components are subject to subpart B of this
part if the SEA maintains education records on students who are or have
been in attendance at any school of an educational agency or
institution subject to the Act and this part.
(b) The educational agency or institution, or SEA or its component,
shall comply with a request for access to records within a reasonable
period of time, but not more than 45 days after it has received the
request.
* * * * *
(d) If circumstances effectively prevent the parent or eligible
student from exercising the right to inspect and review the student's
education records, the educational agency or institution, or SEA or its
component, shall--
(1) Provide the parent or eligible student with a copy of the
records requested; or
(2) Make other arrangements for the parent or eligible student to
inspect and review the requested records.
* * * * *
(Authority: 20 U.S.C. 1232g(a)(1) (A) and (B))
Sec. 99.12 [Amended]
8. Section 99.12 is amended by removing in paragraph (a) the commas
after ``inspect'' and after ``review'' and by adding after the word
``inspect'' the word ``and'' and by revising the authority citation to
read as follows:
(Authority: 20 U.S.C. 1232g(a)(1) (A), (B), (C), and (D))
Sec. 99.20 [Amended]
9. Section 99.20 is amended by removing in paragraph (a) the words
``or other rights''.
Sec. 99.21 [Amended]
10. Section 99.21 is amended by removing in paragraphs (a), (b)(1),
introductory text, and (b)(2) the words ``or other''.
11. Section 99.31 is amended by redesignating paragraph (a)(6)(iii)
as paragraph (a)(6)(iv), by adding a new paragraph (a)(6)(iii) and by
revising paragraphs (a)(5)(i) and (a)(9) and the authority citation to
read as follows:
Sec. 99.31 Under what conditions is prior consent not required to
disclose information?
(a) * * *
(5)(i) The disclosure is to State and local officials or
authorities to whom this information is specifically--
(A) Allowed to be reported or disclosed pursuant to State statute
adopted before November 19, 1974, if the allowed reporting or
disclosure concerns the juvenile justice system and the system's
ability to effectively serve the student whose records are released; or
(B) Allowed to be reported or disclosed pursuant to State statute
adopted after November 19, 1974, subject to the requirements of
Sec. 99.38.
* * * * *
(6) * * *
(iii) If this Office determines that a third party outside the
educational agency or institution to whom information is disclosed
under this paragraph (a)(6) violates paragraph (a)(6)(ii)(B) of this
section, the educational agency or institution may not allow that third
party access to personally identifiable information from education
records for at least five years.
* * * * *
(9)(i) The disclosure is to comply with a judicial order or
lawfully issued subpoena.
(ii) The educational agency or institution may disclose information
under paragraph (a)(9)(i) of this section only if the agency or
institution makes a reasonable effort to notify the parent or eligible
student of the order or subpoena in advance of compliance, so that the
parent or eligible student may seek protective action, unless the
disclosure is in compliance with--
(A) A Federal grand jury subpoena and the court has ordered that
the existence or the contents of the subpoena or the information
furnished in response to the subpoena not be disclosed; or
(B) Any other subpoena issued for a law enforcement purpose and the
court or other issuing agency has ordered that the existence or the
contents of the subpoena or the information furnished in response to
the subpoena not be disclosed.
(iii) If the educational agency or institution initiates legal
action against a parent or student and has complied with paragraph
(a)(9)(ii) of this section, it may disclose the student's education
records that are relevant to the action to the court without a court
order or subpoena.
* * * * *
(Authority: 20 U.S.C. 1232g(a)(5)(A), (b)(1), (b)(2), (b)(4)(B), and
(f)).
12. Section 99.32 is amended by removing the word ``or'' following
paragraph (d)(3), replacing the period at
[[Page 59297]]
the end of paragraph (d)(4) with a semicolon and adding the word ``or''
after the semicolon, adding a new paragraph (d)(5), and revising the
authority citation to read as follows:
Sec. 99.32 What recordkeeping requirements exist concerning requests
and disclosures?
* * * * *
(d) * * *
(5) A party seeking or receiving the records as directed by a
Federal grand jury or other law enforcement subpoena and the issuing
court or other issuing agency has ordered that the existence or the
contents of the subpoena or the information furnished in response to
the subpoena not be disclosed.
(Approved by the Office of Management and Budget under control
number 1880-0508)
(Authority: 20 U.S.C. 1232g(b)(1) and (b)(4)(A))
13. Section 99.33 is amended by revising paragraphs (c) and (d) and
by adding a new paragraph (e) to read as follows:
Sec. 99.33 What limitations apply to the redisclosure of information?
* * * * *
(c) Paragraph (a) of this section does not apply to disclosures
made pursuant to court orders or lawfully issued subpoenas under
Sec. 99.31(a)(9), to disclosures of directory information under
Sec. 99.31(a)(11), or to disclosures to a parent or student under
Sec. 99.31(a)(12).
(d) Except for disclosures under Sec. 99.31(a) (9), (11), and (12),
an educational agency or institution shall inform a party to whom
disclosure is made of the requirements of this section.
(e) If this Office determines that a third party improperly
rediscloses personally identifiable information from education records
in violation of Sec. 99.33(a) of this section, the educational agency
or institution may not allow that third party access to personally
identifiable information from education records for at least five
years.
Sec. 99.34 [Amended]
14. Section 99.34(a)(1)(ii) is amended by removing the word
``policy'' and adding, in its place, the words ``annual notification''.
15. Section 99.36 is amended by revising paragraph (b), adding
paragraph (c) and revising the authority citation to read as follows:
Sec. 99.36 What conditions apply to disclosure of information in
health and safety emergencies?
* * * * *
(b) Nothing in this Act or this part shall prevent an educational
agency or institution from--
(1) Including in the education records of a student appropriate
information concerning disciplinary action taken against the student
for conduct that posed a significant risk to the safety or well-being
of that student, other students, or other members of the school
community;
(2) Disclosing appropriate information maintained under paragraph
(b)(1) of this section to teachers and school officials within the
agency or institution who the agency or institution has determined have
legitimate educational interests in the behavior of the student; or
(3) Disclosing appropriate information maintained under paragraph
(b)(1) of this section to teachers and school officials in other
schools who have been determined to have legitimate educational
interests in the behavior of the student.
(c) Paragraphs (a) and (b) of this section will be strictly
construed.
(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h))
16. A new Sec. 99.38 is added to subpart D to read as follows:
Sec. 99.38 What conditions apply to disclosure of information as
permitted by State statute adopted after November 19, 1974 concerning
the juvenile justice system?
(a) If reporting or disclosure allowed by State statute concerns
the juvenile justice system and the system's ability to effectively
serve, prior to adjudication, the student whose records are released,
an educational agency or institution may disclose education records
under Sec. 99.31(a)(5)(i)(B).
(b) The officials and authorities to whom the records are disclosed
shall certify in writing to the educational agency or institution that
the information will not be disclosed to any other party, except as
provided under State law, without the prior written consent of the
parent of the student.
(Authority: 20 U.S.C. 1232g(b)(1)(J))
Sec. 99.63 [Amended]
17. Section 99.63 is amended by removing the word ``person'' and
adding, in its place, the words ``parent or eligible student''.
Appendix
(Note: This appendix will not be codified in the Code of Federal
Regulations.)
Model Notification of Rights Under FERPA for Elementary and
Secondary Institutions
The Family Educational Rights and Privacy Act (FERPA) affords
parents and students over 18 years of age (``eligible students'')
certain rights with respect to the student's education records. They
are:
(1) The right to inspect and review the student's education
records within 45 days of the day the District receives a request
for access.
Parents or eligible students should submit to the school
principal [or appropriate school official] a written request that
identifies the record(s) they wish to inspect. The principal will
make arrangements for access and notify the parent or eligible
student of the time and place where the records may be inspected.
(2) The right to request the amendment of the student's
education records that the parent or eligible student believes are
inaccurate or misleading.
Parents or eligible students may ask Alpha School District to
amend a record that they believe is inaccurate or misleading. They
should write the school principal, clearly identify the part of the
record they want changed, and specify why it is inaccurate or
misleading.
If the District decides not to amend the record as requested by
the parent or eligible student, the District will notify the parent
or eligible student of the decision and advise them of their right
to a hearing regarding the request for amendment. Additional
information regarding the hearing procedures will be provided to the
parent or eligible student when notified of the right to a hearing.
(3) The right to consent to disclosures of personally
identifiable information contained in the student's education
records, except to the extent that FERPA authorizes disclosure
without consent.
One exception which permits disclosure without consent is
disclosure to school officials with legitimate educational
interests. A school official is a person employed by the District as
an administrator, supervisor, instructor, or support staff member
(including health or medical staff and law enforcement unit
personnel); a person serving on the School Board; a person or
company with whom the District has contracted to perform a special
task (such as an attorney, auditor, medical consultant, or
therapist); or a parent or student serving on an official committee,
such as a disciplinary or grievance committee, or assisting another
school official in performing his or her tasks.
A school official has a legitimate educational interest if the
official needs to review an education record in order to fulfill his
or her professional responsibility.
[Optional] Upon request, the District discloses education
records without consent to officials of another school district in
which a student seeks or intends to enroll. [Note: FERPA requires a
school district to make a reasonable attempt to notify the student
of the records request unless it states in its annual notification
that it intends to forward records on request.]
(4) The right to file a complaint with the U.S. Department of
Education concerning alleged failures by the District to comply with
the requirements of FERPA. The name and address of the Office that
administers FERPA is:
Family Policy Compliance Office, U.S. Department of Education, 400
Maryland Avenue, SW, Washington, DC 20202-4605
[Note: In addition, a school may want to include its directory
information public
[[Page 59298]]
notice, as required by Sec. 99.37 of the regulations, with its
annual notification of rights under FERPA.]
Model Notification of Rights Under FERPA for Postsecondary
Institutions
The Family Educational Rights and Privacy Act (FERPA) affords
students certain rights with respect to their education records.
They are:
(1) The right to inspect and review the student's education
records within 45 days of the day the University receives a request
for access.
Students should submit to the registrar, dean, head of the
academic department, or other appropriate official, written requests
that identify the record(s) they wish to inspect. The University
official will make arrangements for access and notify the student of
the time and place where the records may be inspected. If the
records are not maintained by the University official to whom the
request was submitted, that official shall advise the student of the
correct official to whom the request should be addressed.
(2) The right to request the amendment of the student's
education records that the student believes are inaccurate or
misleading.
Students may ask the University to amend a record that they
believe is inaccurate or misleading. They should write the
University official responsible for the record, clearly identify the
part of the record they want changed, and specify why it is
inaccurate or misleading.
If the University decides not to amend the record as requested
by the student, the University will notify the student of the
decision and advise the student of his or her right to a hearing
regarding the request for amendment. Additional information
regarding the hearing procedures will be provided to the student
when notified of the right to a hearing.
(3) The right to consent to disclosures of personally
identifiable information contained in the student's education
records, except to the extent that FERPA authorizes disclosure
without consent.
One exception which permits disclosure without consent is
disclosure to school officials with legitimate educational
interests. A school official is a person employed by the University
in an administrative, supervisory, academic or research, or support
staff position (including law enforcement unit personnel and health
staff); a person or company with whom the University has contracted
(such as an attorney, auditor, or collection agent); a person
serving on the Board of Trustees; or a student serving on an
official committee, such as a disciplinary or grievance committee,
or assisting another school official in performing his or her tasks.
A school official has a legitimate educational interest if the
official needs to review an education record in order to fulfill his
or her professional responsibility.
[Optional] Upon request, the University discloses education
records without consent to officials of another school, upon
request, in which a student seeks or intends to enroll. [Note: FERPA
requires an institution to make a reasonable attempt to notify the
student of the records request unless the institution states in its
annual notification that it intends to forward records on request.]
(4) The right to file a complaint with the U.S. Department of
Education concerning alleged failures by State University to comply
with the requirements of FERPA. The name and address of the Office
that administers FERPA is:
Family Policy Compliance Office, U.S. Department of Education, 400
Maryland Avenue, SW., Washington, DC, 20202-4605
[Note: In addition, an institution may want to include its directory
information public notice, as required by Sec. 99.37 of the
regulations, with its annual notification of rights under FERPA.]
[FR Doc. 96-29746 Filed 11-20-96; 8:45 am]
BILLING CODE 4000-01-P