34 C.F.R. Subtitle A (7-1-97 Edition)
Part 99 - FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT
As amended Nov. 21, 1996
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Subpart A -- General
Reg. 99.1 To which educational agencies or institutions do these
regulations apply?
Reg. 99.2 What is the purpose of these regulations?
Reg. 99.3 What definitions apply to these regulations?
Reg. 99.4 What are the rights of parents?
Reg. 99.5 What are the rights of students?
Reg. 99.6 [Reserved]
Reg. 99.7 What must an educational agency or institution include in its
annual notification?
Reg. 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?
Reg. 99.10 What rights exist for a parent or eligible student to inspect
and review education records?
Reg. 99.11 May an educational agency or institution charge a fee for copies
of education records?
Reg. 99.12 What limitations exist on the right to inspect and review
records?
Subpart C -- What are the Procedures for Amending Education Records?
Reg. 99.20 How can a parent or eligible student request amendment of the
student's education records?
Reg. 99.21 Under what conditions does a parent or eligible student have the
right to a hearing?
Reg. 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?
Reg. 99.30 Under what conditions is prior consent required to disclose
information?
Reg. 99.31 Under what conditions is prior consent not required to disclose
information?
Reg. 99.32 What recordkeeping requirements exist concerning requests and
disclosures?
Reg. 99.33 What limitations apply to the redisclosure of information?
Reg. 99.34 What conditions apply to disclosure of information to other
educational agencies or institutions?
Reg. 99.35 What conditions apply to disclosure of information for Federal
or State program purposes?
Reg. 99.36 What conditions apply to disclosure of information in health and
safety emergencies?
Reg. 99.37 What conditions apply to disclosing directory information?
Reg. 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?
Reg. 99.60 What functions has the Secretary delegated to the Office and to
the Office of Administrative Law Judges?
Reg. 99.61 What responsibility does an educational agency or institution
have concerning conflict with State or local laws?
Reg. 99.62 What information must an educational agency or institution
submit to the Office?
Reg. 99.63 Where are complaints filed?
Reg. 99.64 What is the complaint procedure?
Reg. 99.65 What is the content of the notice of complaint issued by the
Office?
Reg. 99.66 What are the responsibilities of the Office in the enforcement
process?
Reg. 99.67 How does the Secretary enforce decisions?
AUTHORITY: 20 U.S.C. 1232g
SOURCE: 53 FR 11943. Apr. 11, 1988, unless otherwise noted
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Subpart A -- General
Reg. 99.1 To which educational agencies or institutions do these
regulations apply?
(a) Except as otherwise noted in 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 of Education if --
(1) The educational institution provides educational services or
instruction, or both, to students; or
(2) The educational agency provides administrative control 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.
(c) The Secretary considers funds to be made available to an educational
agency or institution if 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, 19988, as amended at 61 FR 59295 Nov. 21, 1996]
Reg. 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 C.F.R. 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]
Reg. 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)
"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 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 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
(C) Are not available for use for any other purpose.
(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 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 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
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;
(c) The address of the student or student's family;
(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, Apt. 11, 1988, as amended at 60 FR 3468, Jan. 17, 1995; 61
FR 59295 Nov. 21, 1996]
Reg. 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)
Reg. 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.
(c) If an individual is or has been in attendance at one component 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]
Reg. 99.6 [Reserved]
Reg. 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 99.31 authorize disclosure without consent; and
(iv) File with the Department a complaint under 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 99.20;
(iii) If the educational agency or institution has a policy of disclosing
education records under 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]
Reg. 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 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).
Subpart B -- What are the Rights of Inspection and Review of Education
Records?
Reg. 99.10 What rights exist for a parent or eligible student to inspect
and review education records?
(a) Except as limited under 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.
(c) The educational agency or institution, or SEA or its component, 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 educational 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 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]
Reg. 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)
Reg. 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 these
letters and statements; and
(ii) Those letters and statements are related to the student's:
(A) Admission to an educational institution;
(B) Application for employment; or
(C) Receipt of an honor or honorary recognition.
(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?
Reg. 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.
(c) If the educational agency or institution decides not to amend 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 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]
Reg. 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 otherwise
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.
(c) If an educational agency or institution places a statement in 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
(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]
Reg. 99.22 What minimum requirements exist for the conduct of a hearing?
The hearing required by 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.
(c) The hearing may be conducted by any individual, including an 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 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?
Reg. 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 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.
(c) When a disclosure is made under paragraph (a) of this section:
(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]
Reg. 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 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 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 99.35, to
authorized representatives of:
(i) The Comptroller General of the United States;
(ii) The Secretary; or
(iii) State and local educational authorities.
(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;
(C) Determine the conditions for the aid; or
(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 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
(C) Improve instruction.
(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 education records that are relevant to the
action to the court without a court order or subpoena.
(10) The disclosure is in connection with a health or safety emergency,
under the conditions described in 99.36.
(11) The disclosure is information the educational agency or institution
has designated as "directory information", under the conditions described
in 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, U.S.C., 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 or require 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 paragraph (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]
Reg. 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 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 99.31 which each of the additional
parties has in requesting or obtaining the information.
(c) The following parties may inspect the record relating to each 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 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 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]
Reg. 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 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 99.31; and
(2) The educational agency or institution has complied with the
requirements of 99.32(b).
(c) Paragraph (a) of this section does not apply to disclosures made
pursuant to court orders or lawfully issued subpoenas under 99.31(a)(9),
to disclosures of directory information under 99.31(a)(11) or to
disclosures to a parent or student under 99.31(a)(12).
(d) Except for disclosures under Reg. 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
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]
Reg. 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 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; or
(ii) The annual notification of the agency or institution under 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 in 61 FR 59297, Nov. 21, 1996]
Reg. 99.35 What conditions apply to disclosure of information for Federal
or State program purposes?
(a) The officials listed in 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.
(c) Paragraph (b) of this section does not apply if:
(1) The parent or eligible student has given written consent for the
disclosure under 99.30; or
(2) The collection of personally identifiable information is specifically
authorized by Federal law.
(Authority: 20 U.S.C. 1232g(b)(3))
Reg. 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.
(c) Paragraphs (a) and (b) of this section shall be strictly 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]
Reg. 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))
Reg. 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
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 Fed. Reg. 59297 Nov. 21, 1996]
Subpart E -- What are the Enforcement Procedures?
Reg. 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:
(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.
(c) The Secretary designates the Office of Administrative Law Judges 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)
Reg. 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))
Reg. 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))
Reg. 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]
Reg. 99.64 What is the complaint procedure?
(a) A complaint filed under 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.
(c) A timely complaint is defined as an allegation of a violation of 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]
Reg. 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 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 99.64.
(Authority: 20 U.S.C. 1232g(g))
[58 FR 3189, Jan. 7, 1993]
Reg. 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.
(c) If the Office finds that the educational agency or institution 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))
Reg. 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 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 complaint 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 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]
Last Modified: November 9, 1999