[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