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Proposed Rules Expand Disclosure of Student Information

April 15, 2008--On March 24, the U.S. Department of Education (DOE) published new proposed regulations enforcing the Family Educational Rights and Privacy Act (FERPA), which governs disclosures from students’ records by educational institutions. (Federal Register, March 24, 2008, Vol. 73, No. 57 (15574 - 15602; 34 CFR Part 99).

The proposed rules address the disclosure of information to parents and others and set a new standard for DOE’s review of disclosures. The proposed rules also address other matters, including requirements in the U.S. Patriot Act and the Campus Sex Crimes Prevention Act and two U.S. Supreme Court decisions (Owasso Independent School Dist. No. I-011 v. Falvo, and Gonzaga University v. Doe).

Disclosure in “Health and Safety Emergencies”

The proposed regulations do not substantively change the rules regarding release of information in emergencies. The current regulations provide that protected information can be disclosed "in connection with a health or safety emergency" provided the information is disclosed “to appropriate parties …if knowledge of the information is necessary to protect the health or safety of the student or other individuals” 34 CFR § 99.36(a).

The proposed amendments clarify that parents are appropriate recipients of information in a health and safety emergency and that in determining if there is a health or safety emergency, a school “may take into account the totality of the circumstances.” If the school determines that there is “an articulable and significant threat to the health or safety of a student or other individuals,” it may disclose information to any person whose knowledge is necessary to protect the health or safety of the student or others. These clarifications are consistent with existing law.

DOE Review of Disclosures

The significant change the proposed regulation would make is in the area of DOE’s review of disclosures in connection with emergencies. Under the proposed regulation, when a complaint is made concerning such a disclosure, DOE would examine whether there was a “rational basis” for the school determining the disclosure was proper. Proposed 34 CFR 99.36(c). (“If ... there is a rational basis for the determination, [DOE] will not substitute its judgment for that of the school in evaluating the circumstances and making its determination.”)

If the proposed regulation were to take effect, it is uncertain how much leeway DOE would give schools to make questionable disclosures, including of mental health information. The question DOE should ask is whether the school legitimately believed there was a health or safety risk, not whether, after the fact, the school can offer a “rational basis” for the disclosure. The school should be required to show that it made an individualized assessment and, based on that assessment, believed there was an emergency that warranted disclosure.

DOE has acted responsibly in the past to safeguard student privacy. The proposed regulation may herald a new hands-off approach that will weaken FERPA enforcement, erode privacy, and place at risk the confidentiality of students’ mental health information.

Public Comments Encouraged—Watch This Space for a Model

The rules allow for a public comment period (ending at 5 p.m. on May 8, 2008). The Bazelon Center' comments may be used as a model.

You can submit comments through the Federal eRulemaking Portal, via postal mail, commercial delivery or hand delivery. Comments will not be accepted by fax or email. At the top of your comments include the Docket ID:
ED-2008-OPEPD-0002

To submit comments through the Federal eRulemaking Portal go to http://www.regulations.gov. Under “Comment or Submission” enter the Docket ID then click on “Go.” Scroll down until you see the title, Family Educational Rights and Privacy,” then click on “Send a Comment or Submission” and complete the form, pasting your comments in the space provided. You can view other comments there and any supporting and related materials that are available electronically.

For postal mail, commercial delivery or hand delivery, address comments to LeRoy S. Rooker, U.S. Department of Education, 400 Maryland Avenue, SW., room 6W243, Washington, DC 20202-5920. Allow extra time for these documents to arrive by the 5 pm May 8th deadline.

For additional information on this issue please refer to the Bazelon Center's campus mental health policy guide, Supporting Students: A Model Policy for Colleges and Universities, and the October 2007, Department of Education guide entitled, “Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Colleges and Universities.”