Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Actually Brett -- the opinion you sent supports both my points -- 

it's very long so i include only the relevant sections here: - my thoughts 
are in ALL CAPS

Wendy

FERPA defines "education records" as "those records, files, documents, and 
other materials which -

(i) contain information directly related to a student; and

(ii)are maintained by an educational agency or institution or by a person 
acting for such agency or institution.

FERPA applies to the disclosure of tangible records and of information 
derived from tangible records. FERPA does not protect the confidentiality of 
information in general, and, therefore, does not apply to the disclosure of 
information derived from a source other than education records, even if 
education records exist which contain that information. THIS SENTENCE CLEARLY 
INDICATES THAT FERPA DOES NOT APPLY TO EVIDENCE "DERIVED FROM" OUTSIDE 
SOURCES, SUCH AS CIVILIAN POLICE RECORDS OR OTHER DOCUMENTS AND INFORMATION 
GATHERED BY THE SCHOOL FROM NON-SCHOOL SOURCES.  As a general rule, 
information that is obtained through personal knowledge or observation, and 
not from an education record, is not protected from disclosure under FERPA. 

In July 1992, FERPA was amended to remove an impediment to the release of 
records created and maintained by a school's law enforcement unit for a law 
enforcement purpose. Specifically, FERPA was amended to exempt from the 
definition of "education records" the following:

[R]ecords maintained by a law enforcement unit of the educational agency or 
institution that were created by that law enforcement unit for the purpose of 
law enforcement.

20 U.S.C. §1232g(a)(4)(ii). The amendment neither requires nor prohibits the 
release of law enforcement unit records, but allows schools to follow their 
own policies or applicable State law. Accordingly, FERPA no longer prevents a 
campus law enforcement division from disclosing to outside parties law 
enforcement unit records, including campus security incident reports, that 
were created by the law enforcement unit for a law enforcement purpose.

The FERP A regulations define a "law enforcement unit" as the following:

(a)(l) "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 
again any individual or organization other than the agency or institution 
itself; and

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

34 CFR §99.8(a)(l)(i)(ii). The regulations also define "law enforcement 
records" as follows:

(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; Created

(ii) for a law enforcement purpose; and

Maintained by the law enforcement unit.

34 CFR §99.8(b)(l)(i)-(iii).
...

If an institution has a security unit or individual with a dual role or 
function of enforcing institutional rules of conduct related to safety and 
security and referring potential or alleged violations of law to government 
authorities, that unit or individual would be considered a "law enforcement 
unit" under FERPA. Under the new amendment, records of that unit are were 
created and maintained for a law enforcement purpose are considered records 
of a law enforcement unit and, therefore, excluded from the definition of 
"education records" under FERPA.

[W]here a law enforcement unit also performs non-law enforcement functions, 
the records created and maintained by that unit are considered law 
enforcement unit records, even where those records were created for dual 
purposes (e.g. for both law enforcement and disciplinary purposes). Only 
records that were created and maintained by the unit exclusively for a 
non-law enforcement purpose will not be considered records of a law 
enforcement unit.
...

Therefore, with regard to your specific question - when should student 
witness statements and reports made by school security staff be considered 
law enforcement records and when should they be considered education records 
subject to FERPA - the answer to this question depends on who created the 
records, for what purpose the records were created, and who maintains the 
records. We believe that the discussion on this matter in the same preamble 
in the Federal Register referenced above will shed some light on the meaning 
of the regulations:

[I]f a campus security unit initiates an investigation into an incident on 
campus relating to a possible violation of law or the student conduct code, 
the record created and maintained by the unit in connection with this 
investigation is a law enforcement unit record, whether or not it is ever 
referred to the local police authorities. If, however, the same unit or 
individual responsible for law enforcement investigates an incident for the 
purposes of internal disciplinary actions and created a records exclusively 
for the purpose of a possible disciplinary action against the student, that 
record would not be considered a record of a law enforcement unit and would 
be an "education record" subject to FERPA. THUS, AS I SUGGESTED EARLIER, THE 
ONLY REAL ISSUE IS WHETHER LAW ENFORCEMENT CONDUCTS AN INVESTIGATION FOR LAW 
ENFORCEMENT PURPOSES, AND MY ASSUMPTION IS THAT A SEXUAL ASSAULT IS ALWAYS A 
CRIME - WHETHER OR NOT IT IS PROSECUTED -- THUS SHOULD ALWAYS BE INVESTIGATED 
FOR LAW ENFORCEMENT PURPOSES, ESPECIALLY SINCE THERE CAN BE NO DETERMINATION 
IN THE IMMEDIATE AFTERMATH WHETHER IT WILL BE TREATED AS LAW ENFORCEMENT VS. 
DISCIPLINARY.  IN OTHER WORDS, IT IS ASSUMED A SEXUAL ASSAULT, LIKE ANY 
CRIME, WILL BE INVESTIGATED AS AT LEAST A LAW ENFORCEMENT MATTER AS WELL AS A 
DISCIPLINARY MATTER, WHETHER OR NOT IT ENDS UP AS AN ACTIVE PROSECUTION.  
THIS POINT IS SUPPORTED BY THE NEXT SENTENCE IN THE DECISION:   It should be 
stressed that the Secretary expects such occasions to be very rare, 
especially when incidents involving criminal conduct by students at 
postsecondary institutions.  IN OTHER WORDS -- THE PRESUMPTION IS THAT 
CRIMINAL CONDUCT WILL BE INVESTIGATED AS LAW ENFORCEMENT, NOT DISCIPLINARY 
ACTIVITY FOR FERPA PURPOSES.
...


 

Additionally, FERPA would permit the District to disclose personally 
identifiable information from a student's education record under FERPA's 
health and safety emergency provision: This provision allows an educational 
agency or institution to disclose personally identifiable information from 
education records, without prior written consent,




Hi Wendy,
 
Here's the cite:  
_http://www.ed.gov/policy/gen/guid/fpco/ferpa/library/montcounty0215.html_ ;
(http://www.ed.gov/policy/gen/guid/fpco/ferpa/library/montcounty0215.html) 
 
I am not saying the outside document become privileged by FERPA...I am  
saying the copy retained by an administrator is governed by FERPA as to what  
that 
administrator does with it.  The copy the outside law enforcement  agency has 
is not governed by FERPA, even if it is shared with a FERPA-governed  entity. 
 
Does that clarify?
 
Regards,

Brett A. Sokolow, JD
Special Advisor to  the United States Air Force Academy
Special Counsel to the VP for Student  Affairs, Saint Mary's College (IN)
Special Counsel to the President, Hobart  and William Smith Colleges
Special Counsel for AOD Issues, Barton County  Community College
Special Counsel for Student Conduct Issues, Warren Wilson  College
Special Counsel to the Dean of Students, Hendrix  College

President, The National Center for 
Higher Education Risk  Management, Ltd.
"Best Practices for Student Health and  Safety"
(a not-for-profit corporation)
20 Callery  Way
Malvern, PA 19355-2969
Tel. (610) 993-0229
Fax (610)  993-0228
www.ncherm.org





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