Maintained for Historical Purposes

This resource is being maintained for historical purposes only and is not currently applicable.

The Secretary proposes to amend 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

FR part
III
Attachments:
PublicationDate: 3/14/96
FRPart: III
RegPartsAffected:
PageNumbers: 10663-10669
Summary: The Secretary proposes to amend 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 and reduce regulatory burden, and to incorporate several technical changes.
CommentDueDate: 5/13/96

  
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[


[Federal Register: March 14, 1996 (Volume 61, Number 51)]
[Proposed Rules]
[Page 10663-10669]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14mr96-30]



[[Page 10663]]

_______________________________________________________________________

Part III





Department of Education





_______________________________________________________________________



34 CFR Part 99



Family Educational Rights and Privacy; Proposed Rule


[[Page 10664]]


DEPARTMENT OF EDUCATION

34 CFR Part 99

RIN 1880-AA71


Family Educational Rights and Privacy

AGENCY: Department of Education.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Secretary proposes to amend 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 and reduce regulatory burden, and to
incorporate several technical changes.

DATES: Comments must be received on or before May 13, 1996.

ADDRESSES: All comments concerning these proposed regulations should be
addressed to LeRoy Rooker, U.S. Department of Education, 600
Independence Avenue, SW., Room 1366, Washington, D.C. 20202-4605.
Comments may also be sent through the Internet to
FERPA____Comments@ed.gov.
To ensure that public comments have maximum effect in developing
the final regulations, the Department urges that each comment clearly
identify the specific section or sections of the regulations that the
comment addresses and that comments be in the same order as the
regulations.
Comments that concern information collection requirements must be
sent to the Office of Management and Budget at the address listed in
the Paperwork Reduction Act of 1995 section of this preamble. A copy of
those comments may also be sent to the Department representative named
in the preceding paragraph.

FOR FURTHER INFORMATION CONTACT: Sharon Shirley, U.S. Department of
Education, 600 Independence Avenue, SW., Room 1366, Washington, D.C.
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: These proposed 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 II and are essential to an effective partnership
with States and localities. The Secretary proposes these regulations
because he believes they are necessary to implement the law and give
the greatest flexibility to local governments and schools. In addition,
the regulations minimize burden while protecting parents' and students'
rights.

Summary of Major Provisions

The following is a summary of the regulatory provisions the
Secretary proposes as necessary to implement the statute, such as
interpretations of statutory text or standards and procedures for the
operation of the program. The summary does not address provisions that
merely restate statutory language. The Secretary is not authorized to
change statutory requirements. Commenters are requested to direct their
comments to the regulatory provisions that would implement the statute.

Section 99.1 Applicability

FERPA applies to educational agencies and institutions to which
funds are made available under any program which is administered by the
Secretary. The proposed clarification of the terms ``educational
agency'' and ``educational institution'' is necessary to indicate that
FERPA does not, as a whole, apply to State educational agencies (SEAs),
which provide supervision of, but no administrative control or
direction of, public elementary and secondary schools. The proposed
clarification of ``educational agency'' is adapted from the definition
of ``local educational agency'' in 34 CFR 77.1 and is modified, in
particular, to reflect that FERPA applies to certain postsecondary
administrative agencies, such as those found in university systems.
FERPA was amended by the IASA to require SEAs to afford parents access
to their children's education records. In general, that right of access
to records is the only right parents are afforded by FERPA with regard
to education records maintained by SEAs.

Section 99.3 Definitions

The Secretary proposes to amend the definition of the term
``record'' in the regulations to reflect changing technology and
changing modes of maintaining information. The proposed term ``computer
media'' is intended to cover any manner of maintaining information that
is stored through and retrieved by a computer, including information
stored on CD-ROM.

Section 99.7 Annual Notification of Rights

The statute requires that educational agencies and institutions
effectively inform parents and eligible students of their rights. The
statute does not, however, require that educational agencies and
institutions adopt a formal written student records policy. The
Secretary proposes to remove the requirement in Sec. 99.6 that
educational agencies and institutions adopt a formal written student
records policy. The Secretary further proposes to amend the regulations
so that each educational agency and institution will be required to
notify parents and eligible students not only of their basic rights
under FERPA but also of how to pursue those rights at that specific
agency or institution.
The current regulations require that educational agencies or
institutions inform parents and eligible students of their basic
rights. The current regulations also require that the procedures for
pursuing those rights be set forth in a student records policy, a copy
of which parents and eligible students may have upon request. However,
the Secretary believes that, based on the nature of recent complaints
under FERPA, parents and eligible students rarely seek access to the
student records policy and thus remain uninformed of how to pursue
their rights at that particular school, such as the appropriate
procedure to seek access to education records. The Secretary also
believes that removing the requirement for a student records policy and
adding additional requirements to the annual notification of rights
will lessen burden on institutions and will reduce administrative costs
because only one document will be required.
The Secretary believes that implementation of Congress' mandate
that students and parents be ``effectively'' notified of their rights
can best be achieved by requiring additional information in the annual
notification of rights. In that way, parents and eligible students
would receive more effective notification of their rights and how to
pursue them. The Secretary further believes that, because many of the
items required by current regulations to be in a formal written student
records policy are not necessary to implement the law, the removal of
the requirements would give educational agencies and institutions
greater flexibility. Initially, there may be an additional cost because
schools will have to change their annual notifications, but this is
outweighed by

[[Page 10665]]
the elimination of the student records policy requirement. These two
changes together would reduce burden on educational agencies and
institutions and would ensure that parents and eligible students are
more aware of how to pursue their rights.
The Secretary would allow educational agencies and institutions up
to three years to transfer from the current requirements and to
implement the new requirements. In order to provide guidance to
educational agencies and institutions, the Department would develop a
model annual notice that meets the new requirements and will make it
available upon publication of the final regulations. Also, for those
agencies and institutions that choose to adopt a formal written student
records policy, the Department would continue to update and make
available its model student records policy.

Section 99.10 Right To Inspect and Review Education Records

Under section 444(a) of GEPA, SEAs that maintain education records
are required to afford parents the right to inspect and review their
children's education records. The Secretary believes that this new
statutory requirement should be implemented, to the greatest extent
possible, in the same manner as the current regulations for educational
agencies and institutions to afford parents access to education
records. Therefore, the Secretary proposes to amend the access
provisions in the current regulations to set forth the new requirements
for SEAs to afford parents access to education records. The Secretary
proposes to apply to SEAs the same requirement that applies to
educational agencies and institutions, i.e., that they provide a parent
or eligible student access to education records within 45 days of
receipt of a request. The Secretary requests comments regarding whether
this time frame for SEAs to retrieve records and provide access to them
is reasonable.
The Secretary recognizes that this statutory amendment will impose
new burdens for SEAs, and seeks comments in particular from the SEAs as
to how this provision can be administered without significantly
impeding the duties and day-to-day operations of the SEAs. The
Secretary seeks comments on how this provision can be implemented with
minimal burden on SEAs while still affording parents their full
statutory right of access under FERPA. Finally, the Secretary also
seeks comments from the SEAs as to what types of records they maintain
that are directly related to students.

Section 99.31(a)(5) Prior Consent Not Required for Disclosure to
Juvenile Justice Systems

The proposed regulations implement a new statutory provision that
permits, under certain circumstances, the disclosure of education
records if allowed by State law and if the disclosure concerns the
juvenile justice system's ability to serve, prior to adjudication, the
student whose records are released. The Secretary has not proposed to
define the terms ``juvenile justice system'' and ``prior to
adjudication'' to give States flexibility to define these terms
consistent with State law and practice. The Secretary is not aware of
any advantage or need for a uniform definition.

Section 99.31(a)(9) Prior Consent Not Required for Disclosures
Pursuant to Court Orders and Lawfully Issued Subpoenas

The Secretary proposes that educational agencies and institutions
shall not be required to notify parents or eligible students prior to
disclosures of education records pursuant to a federal grand jury
subpoena or a subpoena issued for a law enforcement purpose. The
Secretary also proposes a new regulatory provision regarding the
disclosure of education records when an educational agency or
institution initiates legal action against a parent or student.
The new regulatory provision would clarify that FERPA permits an
educational agency or institution to release education records in court
without a parent's or eligible student's prior written consent if the
educational agency or institution is initiating legal action against
the parent or student, and the agency or institution has made a
reasonable effort to notify the parent or eligible student of the
intent to disclose in advance. The purpose of this notification
requirement is to give the parent or eligible student the opportunity
to seek a protective order, if the parent or student does not want
personally identifiable information disclosed to the public. This new
provision will impose a minimal burden on schools; however, the cost of
notification to parents is outweighed by the benefit to parents who
will be notified prior to the release of their children's education
records to a court.

Section 99.36 Disclosure of Information From Disciplinary Records

The statute was amended by the IASA to make explicit that FERPA
does not prevent educational agencies and institutions from maintaining
records related to a disciplinary action taken against a student for
behavior that posed a significant risk to the student or others or from
disclosing this information to school officials who have been
determined to have a legitimate educational interest in the behavior of
the student. These matters were implicit in the statute prior to the
change.
The statutory amendment also permits the disclosure of information
regarding disciplinary action to school officials in other schools that
have a legitimate educational interest in the behavior of the student.
The Secretary interprets the statute to allow a school official to
disclose information regarding disciplinary action to school officials
in schools where a student is not in attendance. The Secretary believes
that officials in other schools have a legitimate educational interest
in cultivating a safe school environment.
For example, if a school official knows that a student, who has
been disciplined for carrying a weapon, is planning to attend a school-
sponsored activity at another high school, FERPA would not prohibit the
school official from notifying school officials at the other high
school.
The Secretary believes this interpretation is consistent with
Congress' intent. The Secretary welcomes comment on this provision.
While this provision imposes a potential cost to students and parents,
because education records may be released without their consent, that
cost is minimal and is outweighed by the interests of others whose
safety may be at stake.

Executive Order 12866

1. Assessment of Costs and Benefits

These proposed 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 proposed regulations are
those resulting from statutory requirements and those determined by the
Secretary to be necessary to administer this program effectively and
efficiently. Burdens specifically associated with information
collection requirements, if any, are identified and explained elsewhere
in this preamble under the heading Paperwork Reduction Act of 1995.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, the Secretary has

[[Page 10666]]
determined that the benefits of the proposed regulations justify the
costs.
To assist the Department in complying with specific requirements of
Executive Order 12866, the Secretary invites comment on whether there
may be further opportunities to reduce any potential costs or increase
potential benefits resulting from these proposed regulations without
impeding the effective and efficient administration of the program.
The potential costs and benefits of these proposed regulations are
discussed elsewhere in this preamble under the following topic
headings: Sec. 99.7 Annual notification of rights; Sec. 99.10 Right to
inspect and review education records; Sec. 99.31 Prior consent not
required for disclosure; and Sec. 99.36 Disclosure of information from
disciplinary records.

2. Clarity of the Regulations

Executive Order 12866 requires each agency to write regulations
that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following: (1) Are the requirements in the proposed regulations
clearly stated? (2) Do the regulations contain technical terms or other
wording that interferes with their clarity? (3) Does the format of the
regulations (grouping and order of sections, use of headings,
paragraphing, etc.) aid or reduce their clarity? Would the regulations
be easier to understand if they were divided into more (but shorter)
sections? (A ``section'' is preceded by the symbol ``Sec. '' and a
numbered heading; for example, Sec. 99.1 To which educational agencies
or institutions do these regulations apply?) (4) Is the description of
the regulations in the ``Supplementary Information'' section of this
preamble helpful in understanding the regulations? How could this
description be more helpful in making the regulations easier to
understand? (5) What else could the Department do to make the
regulations easier to understand?
A copy of any comments that concern how the Department could make
these proposed regulations easier to understand should be sent to
Stanley M. Cohen, Regulations Quality Officer, U.S. Department of
Education, 600 Independence Avenue, SW. (Room 5121 FOB-10B),
Washington, D.C. 20202-2241.

Regulatory and Flexibility Act Certification

The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
The small entities that would be affected by these proposed
regulations are small local educational agencies (LEAs) receiving
Federal funds from the Department. However, the regulations would not
have a significant economic impact on the small LEAs affected because
the regulations would not impose excessive regulatory burdens or
require unnecessary Federal supervision. The regulations would impose
minimal requirements to ensure that LEAs comply with the educational
privacy protection requirements in FERPA.

Paperwork Reduction Act of 1995

Sections 99.7 and 99.32 contain information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Department of Education has submitted a copy of
these sections to the Office of Management and Budget (OMB) for its
review.
Collection of Information: Family Educational Rights and Privacy.
SEAs, LEAs, postsecondary institutions, and other recipients may be
affected by these regulations. The Department needs and uses the
information to ensure compliance with requirements in FERPA. Annual
public reporting burden for this collection of information is estimated
to be .25 hours per response for 28,075 respondents, including the time
for reviewing instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection of information. Thus, the total annual reporting and
recordkeeping burden for this collection is estimated to be 7,018.75
hours.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10235, New Executive
Office Building, Washington, DC 20503; Attention: Wendy Taylor, Desk
Officer for U.S. Department of Education.
The Department considers comments by the public on this proposed
collection of information in--
<bullet> Evaluating whether the proposed collection of information
is necessary for the proper performance of the functions of the
Department, including whether the information will have a practical
utility;
<bullet> Evaluating the accuracy of the Department's estimate of
the burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
<bullet> Enhancing the quality, usefulness, and clarity of the
information to be collected; and
<bullet> Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology; e.g., permitting
electronic submission of responses.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Department on the
proposed regulations.

Invitation to Comment

Interested persons are invited to submit comments and
recommendations regarding these proposed regulations. This section
highlights those issues already discussed in the preamble on which the
Secretary would particularly like comment.
The Secretary has attempted to balance a desire to ensure that
parents are afforded their rights under the law with a desire to be as
flexible as possible in imposing requirements on educational agencies
and institutions. The Secretary believes this balance can be achieved
through these proposed amendments to the regulations, in particular
through the changes to the annual notification of rights and the
removal of the requirement to adopt a written student records policy.
The Secretary requests specific comments on these proposed changes to
the notice, in particular regarding the extent to which they will
affect schools and parents and students.
As previously stated in the preamble, the Secretary would like
comments on whether the proposed regulations regarding the requirement
of SEAs to afford access to education records will create significant
burden and disruption of operations on the SEAs and any suggestions as
to how to minimize any such burdens or disruptions.
All comments submitted in response to these proposed regulations
will be available for public inspection, during and after the comment
period, in Room 1366, FOB-10B, 600 Independence Avenue, SW.,
Washington, D.C., between the hours of 8:30 a.m. and 4:00 p.m., Monday
through Friday of each week except Federal holidays.

[[Page 10667]]


Assessment of Educational Impact

The Secretary particularly requests comments on whether the
proposed regulations in this document would 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: January 11, 1996.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number does not apply)
The Secretary proposes to amend 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.
(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 the following:
(i) The procedure for exercising the right to inspect and review
education records.
(ii) The procedure for--
(A) Requesting amendment of records under Sec. 99.20;
(B) Obtaining a hearing regarding a denial of a request for
amendment of records under Secs. 99.21 and 99.22; and
(C) Adding a statement to the record under Sec. 99.21.
(iii) The conditions in Sec. 99.31 under which the educational
agency or institution may disclose education records without a parent's
or eligible student's prior written consent.
(iv) 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.
(v) If the educational agency or institution has a policy of
disclosing education records under Sec. 99.31(a)(11), in accordance
with Sec. 99.37, a specification of--
(A) The types of personally identifiable information the agency or
institution has designated as directory information;
(B) A parent's or eligible student's right to refuse to allow the
agency or institution to designate specific types of information about
the student as directory information; and
(C) The period of time which a parent or eligible student has to
notify the agency or institution that he or she does not want the
agency or institution to designate specific types of information about
the student as directory information.
(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.

(Authority: 20 U.S.C. 1232g(e) and (f)).

7. Section 99.10 is amended by adding in paragraphs (c) and (e) ``,
or SEA or its component'' following the word ``institution'' 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 shall 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

[[Page 10668]]
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),
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 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 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 education records 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 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 has ordered that the existence or the contents of the subpoena or
the information furnished in response to the subpoena not be disclosed.

(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.
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 that have been determined to have legitimate

[[Page 10669]]
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''.
[FR Doc. 96-6034 Filed 3-13-96; 8:45 am]
BILLING CODE 4000-01-P



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Last Modified: 06/24/1998