34CFR99: FAMILY EDUCATIONAL RIGHTS AND PRIVACY

[Code of Federal Regulations]

[Title 34, Volume 1, Parts 1 to 299]

[Revised as of July 1, 1997]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR99]

[Page 286-301]

TITLE 34--EDUCATION

PART 99--FAMILY EDUCATIONAL RIGHTS AND PRIVACY

Subpart A--General

Sec.

99.1 To which educational agencies or institutions do these regulations

apply?

99.2 What is the purpose of these regulations?

99.3 What definitions apply to these regulations?

99.4 What are the rights of parents?

99.5 What are the rights of students?

99.6 [Reserved]

99.7 What must an educational agency or institution include in its

annual notification?

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

Subpart B--What Are the Rights of Inspection and Review of Education

Records?

99.10 What rights exist for a parent or eligible student to inspect and

review education records?

99.11 May an educational agency or institution charge a fee for copies

of education records?

99.12 What limitations exist on the right to inspect and review

records?

Subpart C--What Are the Procedures for Amending Education Records?

99.20 How can a parent or eligible student request amendment of the

student's education records?

99.21 Under what conditions does a parent or eligible student have the

right to a hearing?

99.22 What minimum requirements exist for the conduct of a hearing?

Subpart D--May an Educational Agency or Institution Disclose Personally

Identifiable Information From Education Records?

99.30 Under what conditions is prior consent required to disclose

information?

99.31 Under what conditions is prior consent not required to disclose

information?

99.32 What recordkeeping requirements exist concerning requests and

disclosures?

99.33 What limitations apply to the redisclosure of information?

99.34 What conditions apply to disclosure of information to other

educational agencies or institutions?

99.35 What conditions apply to disclosure of information for Federal or

State program purposes?

[[Page 287]]

99.36 What conditions apply to disclosure of information in health and

safety emergencies?

99.37 What conditions apply to disclosing directory information?

99.38 What conditions apply to disclosure of information as permitted

by State statute adopted after November 19, 1974, concerning

the juvenile justice system?

Subpart E--What Are the Enforcement Procedures?

99.60 What functions has the Secretary delegated to the Office and to

the Office of Administrative Law Judges?

99.61 What responsibility does an educational agency or institution

have concerning conflict with State or local laws?

99.62 What information must an educational agency or institution submit

to the Office?

99.63 Where are complaints filed?

99.64 What is the complaint procedure?

99.65 What is the content of the notice of complaint issued by the

Office?

99.66 What are the responsibilities of the Office in the enforcement

process?

99.67 How does the Secretary enforce decisions?

Authority: 20 U.S.C. 1232g, unless otherwise noted.

Source: 53 FR 11943, Apr. 11, 1988, unless otherwise noted.

Subpart A--General

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.

(b) This part does not apply to an educational agency or institution

solely because students attending that agency or institution receive

non-monetary benefits under a program referenced in paragraph (a) of

this section, if no funds under that program are made available to the

agency or institution.

educational agency or institution of funds under one or more of the

programs referenced in paragraph (a) of this section--

(1) Are provided to the agency or institution by grant, cooperative

agreement, contract, subgrant, or subcontract; or

(2) Are provided to students attending the agency or institution and

the funds may be paid to the agency or institution by those students for

educational purposes, such as under the Pell Grant Program and the

Guaranteed Student Loan Program (titles IV-A-1 and IV-B, respectively,

of the Higher Education Act of 1965, as amended).

(d) If an educational agency or institution receives funds under one

or more of the programs covered by this section, the regulations in this

part apply to the recipient as a whole, including each of its components

(such as a department within a university).

(Authority: 20 U.S.C. 1232g)

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996]

Sec. 99.2 What is the purpose of these regulations?

The purpose of this part is to set out requirements for the

protection of privacy of parents and students under section 444 of the

General Education Provisions Act, as amended.

(Authority: 20 U.S.C. 1232g)

Note: 34 CFR 300.560-300.576 contain requirements regarding

confidentiality of information relating to handicapped children who

receive benefits under the Education of the Handicapped Act.

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996]

Sec. 99.3 What definitions apply to these regulations?

The following definitions apply to this part:

Act means the Family Educational Rights and Privacy Act of 1974, as

amended, enacted as section 444 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g)

[[Page 288]]

Attendance includes, but is not limited to:

(a) Attendance in person or by correspondence; and

(b) The period during which a person is working under a work-study

program.

(Authority: 20 U.S.C. 1232g)

Directory information means information contained in an education

record of a student which would not generally be considered harmful or

an invasion of privacy if disclosed. It includes, but is not limited to

the student's name, address, telephone listing, date and place of birth,

major field of study, participation in officially recognized activities

and sports, weight and height of members of athletic teams, dates of

attendance, degrees and awards received, and the most recent previous

educational agency or institution attended.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Disciplinary action or proceeding means the investigation,

adjudication, or imposition of sanctions by an educational agency or

institution with respect to an infraction or violation of the internal

rules of conduct applicable to students of the agency or institution.

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.

(Authority: 20 U.S.C. 1232g(b)(1))

Educational agency or institution means any public or private agency

or institution to which this part applies under Sec. 99.1(a).

(Authority: 20 U.S.C. 1232g(a)(3))

Education records. (a) The term means those records that are:

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party

acting for the agency or institution.

(b) The term does not include:

(1) Records of instructional, supervisory, and administrative

personnel and educational personnel ancillary to those persons that are

kept in the sole possession of the maker of the record, and are not

accessible or revealed to any other person except a temporary substitute

for the maker of the record;

(2) Records of the law enforcement unit of an educational agency or

institution, subject to the provisions of Sec. 99.8.

(3)(i) Records relating to an individual who is employed by an

educational agency or institution, that:

(A) Are made and maintained in the normal course of business;

(B) Relate exclusively to the individual in that individual's

capacity as an employee; and

(ii) Records relating to an individual in attendance at the agency

or institution who is employed as a result of his or her status as a

student are education records and not excepted under paragraph (b)(3)(i)

of this definition.

(4) Records on a student who is 18 years of age or older, or is

attending an institution of postsecondary education, that are:

(i) Made or maintained by a physician, psychiatrist, psychologist,

or other recognized professional or paraprofessional acting in his or

her professional capacity or assisting in a paraprofessional capacity;

(ii) Made, maintained, or used only in connection with treatment of

the student; and

(iii) Disclosed only to individuals providing the treatment. For the

purpose of this definition, ``treatment'' does not include remedial

educational activities or activities that are part of the program of

instruction at the agency or institution; and

(5) Records that only contain information about an individual after

he or she is no longer a student at that agency or institution.

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

Eligible student means a student who has reached 18 years of age or

is attending an institution of postsecondary education.

(Authority: 20 U.S.C. 1232g(d))

Institution of postsecondary education means an institution that

provides education to students beyond the secondary school level;

``secondary school level'' means the educational level (not

[[Page 289]]

beyond grade 12) at which secondary education is provided as determined

under State law.

(Authority: 20 U.S.C. 1232g(d))

Parent means 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.

(Authority: 20 U.S.C. 1232g)

Party means an individual, agency, institution, or organization.

(Authority: 20 U.S.C. 1232g(b)(4)(A))

Personally identifiable information includes, but is not limited to:

(a) The student's name;

(b) The name of the student's parent or other family member;

(d) A personal identifier, such as the student's social security

number or student number;

(e) A list of personal characteristics that would make the student's

identity easily traceable; or

(f) Other information that would make the student's identity easily

traceable.

(Authority: 20 U.S.C. 1232g)

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.

(Authority: 20 U.S.C. 1232g)

Secretary means the Secretary of the U.S. Department of Education or

an official or employee of the Department of Education acting for the

Secretary under a delegation of authority.

(Authority: 20 U.S.C. 1232g)

Student, except as otherwise specifically provided in this part,

means any individual who is or has been in attendance at an educational

agency or institution and regarding whom the agency or institution

maintains education records.

(Authority: 20 U.S.C. 1232g(a)(6))

[53 FR 11943, Apr. 11, 1988, as amended at 60 FR 3468, Jan. 17, 1995; 61

FR 59295, Nov. 21, 1996]

Sec. 99.4 What are the rights of parents?

An educational agency or institution shall give full rights under

the Act to either parent, unless the agency or institution has been

provided with evidence that there is a court order, State statute, or

legally binding document relating to such matters as divorce,

separation, or custody that specifically revokes these rights.

(Authority: 20 U.S.C. 1232g)

Sec. 99.5 What are the rights of students?

(a) When a student becomes an eligible student, the rights accorded

to, and consent required of, parents under this part transfer from the

parents to the student.

(b) The Act and this part do not prevent educational agencies or

institutions from giving students rights in addition to those given to

parents.

of an educational agency or institution, that attendance does not give

the individual rights as a student in other components of the agency or

institution to which the individual has applied for admission, but has

never been in attendance.

(Authority: 20 U.S.C. 1232g(d))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3188, Jan. 7, 1993]

Sec. 99.6 [Reserved]

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

[[Page 290]]

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))

[61 FR 59295, Nov. 21, 1996]

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

(a)(1) Law enforcement unit means any individual, office,

department, division, or other component of an educational agency or

institution, such as a unit of commissioned police officers or non-

commissioned security guards, that is officially authorized or

designated by that agency or institution to--

(i) Enforce any local, State, or Federal law, or refer to

appropriate authorities a matter for enforcement of any local, State, or

Federal law against any individual or organization other than the agency

or institution itself; or

(ii) Maintain the physical security and safety of the agency or

institution.

(2) A component of an educational agency or institution does not

lose its status as a law enforcement unit if it also performs other,

non-law enforcement functions for the agency or institution, including

investigation of incidents or conduct that constitutes or leads to a

disciplinary action or proceedings against the student.

(b)(1) Records of a law enforcement unit means those records, files,

documents, and other materials that are--

(i) Created by a law enforcement unit;

(ii) Created for a law enforcement purpose; and

(iii) Maintained by the law enforcement unit.

(2) Records of a law enforcement unit does not mean--

(i) Records created by a law enforcement unit for a law enforcement

purpose that are maintained by a component of the educational agency or

institution other than the law enforcement unit; or

(ii) Records created and maintained by a law enforcement unit

exclusively for a non-law enforcement purpose, such as a disciplinary

action or proceeding conducted by the educational agency or institution.

(c)(1) Nothing in the Act prohibits an educational agency or

institution from contacting its law enforcement unit, orally or in

writing, for the purpose of asking that unit to investigate a possible

violation of, or to enforce, any local, State, or Federal law.

(2) Education records, and personally identifiable information

contained in education records, do not lose their status as education

records and remain subject to the Act, including the disclosure

provisions of Sec. 99.30, while in the possession of the law enforcement

unit.

(d) The Act neither requires nor prohibits the disclosure by an

educational agency or institution of its law enforcement unit records.

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

[60 FR 3469, Jan. 17, 1995]

[[Page 291]]

Subpart B--What Are the Rights of Inspection and Review of Education

Records?

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.

shall respond to reasonable requests for explanations and

interpretations of the records.

(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.

(e) The educational agency or institution, or SEA or its component

shall not destroy any education records if there is an outstanding

request to inspect and review the records under this section.

(f) While an education agency or institution is not required to give

an eligible student access to treatment records under paragraph (b)(4)

of the definition of Education records in Sec. 99.3, the student may

have those records reviewed by a physician or other appropriate

professional of the student's choice.

(Authority: 20 U.S.C. 1232g(a)(1) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

Sec. 99.11 May an educational agency or institution charge a fee for

copies of education records?

(a) Unless the imposition of a fee effectively prevents a parent or

eligible student from exercising the right to inspect and review the

student's education records, an educational agency or institution may

charge a fee for a copy of an education record which is made for the

parent or eligible student.

(b) An educational agency or institution may not charge a fee to

search for or to retrieve the education records of a student.

(Authority: 20 U.S.C. 1232g(a)(1))

Sec. 99.12 What limitations exist on the right to inspect and review

records?

(a) If the education records of a student contain information on

more than one student, the parent or eligible student may inspect and

review or be informed of only the specific information about that

student.

(b) A postsecondary institution does not have to permit a student to

inspect and review education records that are:

(1) Financial records, including any information those records

contain, of his or her parents;

(2) Confidential letters and confidential statements of

recommendation placed in the education records of the student before

January 1, 1975, as long as the statements are used only for the

purposes for which they were specifically intended; and

(3) Confidential letters and confidential statements of

recommendation placed in the student's education records after January

1, 1975, if:

(i) The student has waived his or her right to inspect and review

those letters and statements; and

[[Page 292]]

(ii) Those letters and statements are related to the student's:

(A) Admission to an educational institution;

(B) Application for employment; or

(c)(1) A waiver under paragraph (b)(3)(i) of this section is valid

only if:

(i) The educational agency or institution does not require the

waiver as a condition for admission to or receipt of a service or

benefit from the agency or institution; and

(ii) The waiver is made in writing and signed by the student,

regardless of age.

(2) If a student has waived his or her rights under paragraph

(b)(3)(i) of this section, the educational institution shall:

(i) Give the student, on request, the names of the individuals who

provided the letters and statements of recommendation; and

(ii) Use the letters and statements of recommendation only for the

purpose for which they were intended.

(3)(i) A waiver under paragraph (b)(3)(i) of this section may be

revoked with respect to any actions occurring after the revocation.

(ii) A revocation under paragraph (c)(3)(i) of this section must be

in writing.

(Authority: 20 U.S.C. 1232g(a)(1) (A), (B), (C), and (D))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

Subpart C--What Are the Procedures for Amending Education Records?

Sec. 99.20 How can a parent or eligible student request amendment of

the student's education records?

(a) If a parent or eligible student believes the education records

relating to the student contain information that is inaccurate,

misleading, or in violation of the student's rights of privacy, he or

she may ask the educational agency or institution to amend the record.

(b) The educational agency or institution shall decide whether to

amend the record as requested within a reasonable time after the agency

or institution receives the request.

the record as requested, it shall inform the parent or eligible student

of its decision and of his or her right to a hearing under Sec. 99.21.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61

FR 59296, Nov. 21, 1996]

Sec. 99.21 Under what conditions does a parent or eligible student have

the right to a hearing?

(a) An educational agency or institution shall give a parent or

eligible student, on request, an opportunity for a hearing to challenge

the content of the student's education records on the grounds that the

information contained in the education records is inaccurate,

misleading, or in violation of the privacy rights of the student.

(b)(1) If, as a result of the hearing, the educational agency or

institution decides that the information is inaccurate, misleading, or

otherwise in violation of the privacy rights of the student, it shall:

(i) Amend the record accordingly; and

(ii) Inform the parent or eligible student of the amendment in

writing.

(2) If, as a result of the hearing, the educational agency or

institution decides that the information in the education record is not

inaccurate, misleading, or otherwise in violation of the privacy rights

of the student, it shall inform the parent or eligible student of the

right to place a statement in the record commenting on the contested

information in the record or stating why he or she disagrees with the

decision of the agency or institution, or both.

the education records of a student under paragraph (b)(2) of this

section, the agency or institution shall:

(1) Maintain the statement with the contested part of the record for

as long as the record is maintained; and

[[Page 293]]

(2) Disclose the statement whenever it discloses the portion of the

record to which the statement relates.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

Sec. 99.22 What minimum requirements exist for the conduct of a

hearing?

The hearing required by Sec. 99.21 must meet, at a minimum, the

following requirements:

(a) The educational agency or institution shall hold the hearing

within a reasonable time after it has received the request for the

hearing from the parent or eligible student.

(b) The educational agency or institution shall give the parent or

eligible student notice of the date, time, and place, reasonably in

advance of the hearing.

official of the educational agency or institution, who does not have a

direct interest in the outcome of the hearing.

(d) The educational agency or institution shall give the parent or

eligible student a full and fair opportunity to present evidence

relevant to the issues raised under Sec. 99.21. The parent or eligible

student may, at their own expense, be assisted or represented by one or

more individuals of his or her own choice, including an attorney.

(e) The educational agency or institution shall make its decision in

writing within a reasonable period of time after the hearing.

(f) The decision must be based solely on the evidence presented at

the hearing, and must include a summary of the evidence and the reasons

for the decision.

(Authority: 20 U.S.C. 1232g(a)(2))

Subpart D--May an Educational Agency or Institution Disclose Personally

Identifiable Information From Education Records?

Sec. 99.30 Under what conditions is prior consent required to disclose

information?

(a) The parent or eligible student shall provide a signed and dated

written consent before an educational agency or institution discloses

personally identifiable information from the student's education

records, except as provided in Sec. 99.31.

(b) The written consent must:

(1) Specify the records that may be disclosed;

(2) State the purpose of the disclosure; and

(3) Identify the party or class of parties to whom the disclosure

may be made.

(1) If a parent or eligible student so requests, the educational

agency or institution shall provide him or her with a copy of the

records disclosed; and

(2) If the parent of a student who is not an eligible student so

requests, the agency or institution shall provide the student with a

copy of the records disclosed.

(Authority: 20 U.S.C. 1232g (b)(1) and (b)(2)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993]

Sec. 99.31 Under what conditions is prior consent not required to

disclose information?

(a) An educational agency or institution may disclose personally

identifiable information from an education record of a student without

the consent required by Sec. 99.30 if the disclosure meets one or more

of the following conditions:

(1) The disclosure is to other school officials, including teachers,

within the agency or institution whom the agency or institution has

determined to have legitimate educational interests.

(2) The disclosure is, subject to the requirements of Sec. 99.34, to

officials of another school, school system, or institution of

postsecondary education where the student seeks or intends to enroll.

(3) The disclosure is, subject to the requirements of Sec. 99.35, to

authorized representatives of:

(i) The Comptroller General of the United States;

(ii) The Secretary; or

(iii) State and local educational authorities.

[[Page 294]]

(4)(i) The disclosure is in connection with financial aid for which

the student has applied or which the student has received, if the

information is necessary for such purposes as to:

(A) Determine eligibility for the aid;

(B) Determine the amount of the aid;

(D) Enforce the terms and conditions of the aid.

(ii) As used in paragraph (a)(4)(i) of this section, financial aid

means a payment of funds provided to an individual (or a payment in kind

of tangible or intangible property to the individual) that is

conditioned on the individual's attendance at an educational agency or

institution.

(Authority: 20 U.S.C. 1232g(b)(1)(D))

(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.

(ii) Paragraph (a)(5)(i) of this section does not prevent a State

from further limiting the number or type of State or local officials to

whom disclosures may be made under that paragraph.

(6)(i) The disclosure is to organizations conducting studies for, or

on behalf of, educational agencies or institutions to:

(A) Develop, validate, or administer predictive tests;

(B) Administer student aid programs; or

(ii) The agency or institution may disclose information under

paragraph (a)(6)(i) of this section only if:

(A) The study is conducted in a manner that does not permit personal

identification of parents and students by individuals other than

representatives of the organization; and

(B) The information is destroyed when no longer needed for the

purposes for which the study was conducted.

(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.

(iv) For the purposes of paragraph (a)(6) of this section, the term

organization includes, but is not limited to, Federal, State, and local

agencies, and independent organizations.

(7) The disclosure is to accrediting organizations to carry out

their accrediting functions.

(8) The disclosure is to parents of a dependent student, as defined

in section 152 of the Internal Revenue Code of 1954.

(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.

[[Page 295]]

(10) The disclosure is in connection with a health or safety

emergency, under the conditions described in Sec. 99.36.

(11) The disclosure is information the educational agency or

institution has designated as ``directory information'', under the

conditions described in Sec. 99.37.

(12) The disclosure is to the parent of a student who is not an

eligible student or to the student.

(13) The disclosure is to an alleged victim of any crime of

violence, as that term is defined in section 16 of title 18, United

States Code, of the results of any disciplinary proceeding conducted by

an institution of postsecondary education against the alleged

perpetrator of that crime with respect to that crime.

(b) This section does not forbid an educational agency or

institution to disclose, nor does it require an educational agency or

institution to disclose, personally identifiable information from the

education records of a student to any parties under paragraphs (a)(1)

through (11) and (13) of this section.

(Authority: 20 U.S.C. 1232g(a)(5)(A), (b)(1), (b)(2), (b)(4)(B), and

(f))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 58

FR 3189, Jan. 7, 1993; 61 FR 59296, Nov. 21, 1996]

Sec. 99.32 What recordkeeping requirements exist concerning requests

and disclosures?

(a)(1) An educational agency or institution shall maintain a record

of each request for access to and each disclosure of personally

identifiable information from the education records of each student.

(2) The agency or institution shall maintain the record with the

education records of the student as long as the records are maintained.

(3) For each request or disclosure the record must include:

(i) The parties who have requested or received personally

identifiable information from the education records; and

(ii) The legitimate interests the parties had in requesting or

obtaining the information.

(b) If an educational agency or institution discloses personally

identifiable information from an education record with the understanding

authorized under Sec. 99.33(b), the record of the disclosure required

under this section must include:

(1) The names of the additional parties to which the receiving party

may disclose the information on behalf of the educational agency or

institution; and

(2) The legitimate interests under Sec. 99.31 which each of the

additional parties has in requesting or obtaining the information.

student:

(1) The parent or eligible student.

(2) The school official or his or her assistants who are responsible

for the custody of the records.

(3) Those parties authorized in Sec. 99.31(a) (1) and (3) for the

purposes of auditing the recordkeeping procedures of the educational

agency or institution.

(d) Paragraph (a) of this section does not apply if the request was

from, or the disclosure was to:

(1) The parent or eligible student;

(2) A school official under Sec. 99.31(a)(1);

(3) A party with written consent from the parent or eligible

student;

(4) A party seeking directory information; or

(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))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996]

Sec. 99.33 What limitations apply to the redisclosure of information?

(a)(1) An educational agency or institution may disclose personally

identifiable information from an education record only on the condition

that the party to whom the information is disclosed will not disclose

the information to any other party without the prior

[[Page 296]]

consent of the parent or eligible student.

(2) The officers, employees, and agents of a party that receives

information under paragraph (a)(1) of this section may use the

information, but only for the purposes for which the disclosure was

made.

(b) Paragraph (a) of this section does not prevent an educational

agency or institution from disclosing personally identifiable

information with the understanding that the party receiving the

information may make further disclosures of the information on behalf of

the educational agency or institution if:

(1) The disclosures meet the requirements of Sec. 99.31; and

(2) The educational agency or institution has complied with the

requirements of Sec. 99.32(b).

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.

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

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996]

Sec. 99.34 What conditions apply to disclosure of information to other

educational agencies or institutions?

(a) An educational agency or institution that discloses an education

record under Sec. 99.31(a)(2) shall:

(1) Make a reasonable attempt to notify the parent or eligible

student at the last known address of the parent or eligible student,

unless:

(i) The disclosure is initiated by the parent or eligible student;

(ii) The annual notification of the agency or institution under

Sec. 99.6 includes a notice that the agency or institution forwards

education records to other agencies or institutions that have requested

the records and in which the student seeks or intends to enroll;

(2) Give the parent or eligible student, upon request, a copy of the

record that was disclosed; and

(3) Give the parent or eligible student, upon request, an

opportunity for a hearing under subpart C.

(b) An educational agency or institution may disclose an education

record of a student in attendance to another educational agency or

institution if:

(1) The student is enrolled in or receives services from the other

agency or institution; and

(2) The disclosure meets the requirements of paragraph (a) of this

section.

(Authority: 20 U.S.C. 1232g(b)(1)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996]

Sec. 99.35 What conditions apply to disclosure of information for

Federal or State program purposes?

(a) The officials listed in Sec. 99.31(a)(3) may have access to

education records in connection with an audit or evaluation of Federal

or State supported education programs, or for the enforcement of or

compliance with Federal legal requirements which relate to those

programs.

(b) Information that is collected under paragraph (a) of this

section must:

(1) Be protected in a manner that does not permit personal

identification of individuals by anyone except the officials referred to

in paragraph (a) of this section; and

(2) Be destroyed when no longer needed for the purposes listed in

paragraph (a) of this section.

(1) The parent or eligible student has given written consent for the

disclosure under Sec. 99.30; or

[[Page 297]]

(2) The collection of personally identifiable information is

specifically authorized by Federal law.

(Authority: 20 U.S.C. 1232g(b)(3))

Sec. 99.36 What conditions apply to disclosure of information in health

and safety emergencies?

(a) An educational agency or institution may disclose personally

identifiable information from an education record to appropriate parties

in connection with an emergency if knowledge of the information is

necessary to protect the health or safety of the student or other

individuals.

(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.

construed.

(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61

FR 59297, Nov. 21, 1996]

Sec. 99.37 What conditions apply to disclosing directory information?

(a) An educational agency or institution may disclose directory

information if it has given public notice to parents of students in

attendance and eligible students in attendance at the agency or

institution of:

(1) The types of personally identifiable information that the agency

or institution has designated as directory information;

(2) A parent's or eligible student's right to refuse to let the

agency or institution designate any or all of those types of information

about the student as directory information; and

(3) The period of time within which a parent or eligible student has

to notify the agency or institution in writing that he or she does not

want any or all of those types of information about the student

designated as directory information.

(b) An educational agency or institution may disclose directory

information about former students without meeting the conditions in

paragraph (a) of this section.

(Authority: 20 U.S.C. 1232g(a)(5) (A) and (B))

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))

[61 FR 59297, Nov. 21, 1996]

Subpart E--What Are the Enforcement Procedures?

Sec. 99.60 What functions has the Secretary delegated to the Office and

to the Office of Administrative Law Judges?

(a) For the purposes of this subpart, Office means the Family Policy

Compliance Office, U.S. Department of Education.

(b) The Secretary designates the Office to:

[[Page 298]]

(1) Investigate, process, and review complaints and violations under

the Act and this part; and

(2) Provide technical assistance to ensure compliance with the Act

and this part.

to act as the Review Board required under the Act to enforce the Act

with respect to all applicable programs. The term applicable program is

defined in section 400 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g (f) and (g), 1234)

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993]

Sec. 99.61 What responsibility does an educational agency or

institution have concerning conflict with State or local laws?

If an educational agency or institution determines that it cannot

comply with the Act or this part due to a conflict with State or local

law, it shall notify the Office within 45 days, giving the text and

citation of the conflicting law.

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

Sec. 99.62 What information must an educational agency or institution

submit to the Office?

The Office may require an educational agency or institution to

submit reports containing information necessary to resolve complaints

under the Act and the regulations in this part.

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

Sec. 99.63 Where are complaints filed?

A parent or eligible student may file a written complaint with the

Office regarding an alleged violation under the Act and this part. The

Office's address is: Family Policy Compliance Office, U. S. Department

of Education, Washington, DC 20202-4605.

(Authority: 20 U.S.C. 1232g(g))

[58 FR 3189, Jan. 7, 1993, as amended at 61 FR 59297, Nov. 21, 1996]

Sec. 99.64 What is the complaint procedure?

(a) A complaint filed under Sec. 99.63 must contain specific

allegations of fact giving reasonable cause to believe that a violation

of the Act or this part has occurred.

(b) The Office investigates each timely complaint to determine

whether the educational agency or institution has failed to comply with

the provisions of the Act or this part.

the Act that is submitted to the Office within 180 days of the date of

the alleged violation or of the date that the complainant knew or

reasonably should have known of the alleged violation.

(d) The Office extends the time limit in this section if the

complainant shows that he or she was prevented by circumstances beyond

the complainant's control from submitting the matter within the time

limit, or for other reasons considered sufficient by the Office.

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

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993]

Sec. 99.65 What is the content of the notice of complaint issued by the

Office?

(a) The Office notifies the complainant and the educational agency

or institution in writing if it initiates an investigation of a

complaint under Sec. 99.64(b). The notice to the educational agency or

institution--

(1) Includes the substance of the alleged violation; and

(2) Asks the agency or institution to submit a written response to

the complaint.

(b) The Office notifies the complainant if it does not initiate an

investigation of a complaint because the complaint fails to meet the

requirements of Sec. 99.64.

(Authority: 20 U.S.C. 1232g(g))

[58 FR 3189, Jan. 7, 1993]

[[Page 299]]

Sec. 99.66 What are the responsibilities of the Office in the

enforcement process?

(a) The Office reviews the complaint and response and may permit the

parties to submit further written or oral arguments or information.

(b) Following its investigation, the Office provides to the

complainant and the educational agency or institution written notice of

its findings and the basis for its findings.

has not complied with the Act or this part, the notice under paragraph

(b) of this section:

(1) Includes a statement of the specific steps that the agency or

institution must take to comply; and

(2) Provides a reasonable period of time, given all of the

circumstances of the case, during which the educational agency or

institution may comply voluntarily.

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

Sec. 99.67 How does the Secretary enforce decisions?

(a) If the educational agency or institution does not comply during

the period of time set under Sec. 99.66(c), the Secretary may, in

accordance with part E of the General Education Provisions Act--

(1) Withhold further payments under any applicable program;

(2) Issue a compliant to compel compliance through a cease-and-

desist order; or

(3) Terminate eligibility to receive funding under any applicable

program.

(b) If, after an investigation under Sec. 99.66, the Secretary finds

that an educational agency or institution has complied voluntarily with

the Act or this part, the Secretary provides the complainant and the

agency or institution written notice of the decision and the basis for

the decision.

(Note: 34 CFR part 78 contains the regulations of the Education

Appeal Board)

(Authority: 20 U.S.C. 1232g(f); 20 U.S.C. 1234)

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 58

FR 3189, Jan. 7, 1993]

[[Page 301]]

Subtitle B--Regulations of the Offices of the Department of Education

[[Page 303]]