March 8, 2005

W. Joseph Hatley, Esq.

Lathrop & Gage

Building 82, Suite 1000

10851 Mastin Boulevard

Overland Park, Kansas 62210-1669

Dear Mr. Hatley:

This responds to your letter of October 27, 2004, in which you asked for
guidance regarding the disclosure of information by your client, Unified
School District No. 229, Johnson County, Kansas (District), under the
Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g.
This Office administers FERPA and is responsible for providing technical
assistance to ensure compliance with the statute and regulations
codified at 34 CFR Part 99.

You asked whether the District could notify parents that a registered
juvenile sex offender has enrolled in their children's high school.
According to your letter, information about registered sex offenders,
including juvenile offenders, is deemed an "open record" under Kansas
law and may be posted on any Internet site sponsored by a sheriff's
department or the Kansas Bureau of Investigation (KBI). You indicated
that KBI maintains a website devoted to publishing the names, addresses,
pictures and other pertinent information concerning registrants. Since
the student appears as a registered sex offender on the KBI website, you
suggested that this information is not part of the student's "education
records" and therefore not subject to FERPA. You also suggested that
since a student's school falls within the definition of "directory
information," the District could disclose the student's presence at a
particular school in conjunction with public information not found in
the student's education records (i.e., the fact that the student is a
registered sex offender).

Under FERPA an educational agency or institution may not have a policy
or practice of disclosing education records, or personally identifiable
information from education records, without the prior written consent of
the parents of students who are or who have been in attendance. 20
U.S.C. § 1232g(b)(1) and (b)(2); 34 CFR § 99.30. (Once a student reaches
18 years of age or attends a postsecondary institution, written consent
must be obtained from the student. See 34 CFR §§ 99.3 "Eligible student"
and 99.5.) "Education records" are defined as information that is 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. 34 CFR § 99.3 ("Education records").

There is no exclusion from the definition of "education records" for
information that is available from another source, even if the
information is publicly available. While your letter does not provide
sufficient detail for us to determine whether the District, in fact,
maintains information about the student's status as a registered sex
offender, this information would be considered an "education record"
under FERPA if it is maintained by the District, even if it was obtained
from the public, KBI website.

You noted correctly that a student's enrollment at a particular school
may be designated and disclosed without prior written consent as
"directory information," subject to the notice and opt-out procedures in
§ 99.37, because it is information that generally would not be
considered "harmful or an invasion of privacy" if disclosed. See 34 CFR
§ 99.3 ("Directory information"). However, in disclosing directory
information under FERPA, an agency or institution must be careful not to
link it to information that may not be disclosed as directory
information. The fact that information may be available on a public
website is not dispositive of whether it is the type of information that
would be harmful or an invasion of privacy if disclosed. For example, we
would consider a parent's real estate taxes and property values to be
information that would be "harmful or an invasion of privacy" if
disclosed by an educational agency or institution, even though this
information is generally available from public websites maintained by
most jurisdictions. We likewise view an individual's status as a
registered sex offender as the type of information that would generally
be considered harmful or an invasion of privacy if disclosed.

As you know, there are several exceptions to the prior written consent
requirement in FERPA that are codified in § 99.31 of the regulations. In
October 2000, Congress added a new exception in § 1601 of the Victims of
Trafficking and Violence Protection Act of 2000 (Pub. L. 106-386), known
as the Campus Sex Crimes Prevention Act (CSCPA), which provides:

> Nothing in this section may be construed to prohibit an educational
> institution from disclosing information provided to the institution
> under section 170101 of the Violent Crime Control and Law Enforcement
> Act of 1994, 42 U.S.C. 14071, concerning registered sex offenders who
> are required to register under such section.

20 U.S.C. § 1232g(b)(7)(A). The Secretary notified educational
institutions that disclosure of this information is permitted under
FERPA, without consent, in a letter dated October 24, 2002, that is
posted on our website at
<http://www.ed.gov/policy/gen/guid/fpco/hottopics/ht10-24-02.html>. As
explained in this letter and more fully below, the CSCPA amendment to
FERPA applies to both postsecondary and elementary and secondary
institutions.

The minimum national standards for sex offender registration and
community notification programs are contained in the Federal Jacob
Wetterling Crimes Against Children and Sexually Violent Offender
Registration Act, codified at 42 U.S.C. § 14071. Under the Wetterling
Act, States must establish programs that require a sexually violent
predator (and anyone convicted of specified criminal offenses against
minors) to register their name and address with the appropriate
authority where the offender lives, works, or is enrolled as a student.
States are also required to release relevant information necessary to
protect the public concerning persons required to register, excluding
the identity of any victim. This community notification provision is
commonly known as the "Megan's Law" amendment to the Wetterling Act. See
20 U.S.C. § 14071(e).

CSCPA supplemented the general standards for sex offender registration
and community notification programs with provisions specifically
designed for higher education campus communities. 20 U.S.C. § 14071(j).
These include a requirement that States obtain information about a
registered offender's enrollment or employment at an institution of
higher education and make this information available promptly to a
campus police department or other appropriate law enforcement agency
having jurisdiction where the institution is located. (The Attorney
General's Final Guidelines implementing this provision were issued on
October 25, 2002, at 67 Fed. Reg. 65598.) CSCPA also amended the Higher
Education Act of 1965 by requiring institutions of higher education to
advise the campus community where it can obtain information about
registered sex offenders provided by the State pursuant to the
Wetterling Act, such as the campus law enforcement office, a local law
enforcement agency, or a computer network address. 20 U.S.C. §
1092(f)(1)(I); 34 CFR § 668.46(b)(12).

While the FERPA amendment was made in the context of CSCPA's
enhancements to registration and notification requirements applicable to
the higher education community, the Department has determined that all
educational institutions are covered by the FERPA amendment, including
elementary and secondary schools, and not just postsecondary
institutions. The registration and community notification requirements
apply in the State where an offender lives, works, or is a student,
defined as "a person who is enrolled on a full-time or part-time basis,
in any public or private educational institution, including any
secondary school, trade, or professional institution, or institution of
higher education." See 42 U.S.C. § 14071(a)(3)(G). Because the sex
offender registration and community notification requirements apply
broadly to students enrolled in "any public or private educational
institution," the Department likewise interprets the FERPA amendment to
apply to all educational agencies and institutions subject to FERPA.

The Attorney General's Guidelines implementing the original and amended
Wetterling Act standards for community notification programs, as noted
above, govern the release of information about registered sex offenders
by educational institutions. The Final Guidelines implementing CSCPA
amendments explain that the general community notification requirement,
42 U.S.C. § 14072(e)(2), applies to registered sex offenders enrolled or
employed at institutions of higher education, just as it applies to all
other registered sex offenders. Subsection (e)(2) requires that relevant
information be released concerning registrants as necessary to protect
the public. See 67 [Fed.]{.underline} [Reg.]{.underline} at 65598. Final
Guidelines for the community notification requirements explain that
"there is no requirement under the \[Wetterling\] Act that registration
information be treated as private or confidential to any greater extent
than the State may wish" and that States "retain discretion to make
judgments concerning the circumstances in which, and the extent to
which, the disclosure of registration information to the public is
necessary for public safety purposes and to specify standards and
procedures for making these determinations." See 64 [Fed.]{.underline}
[Reg.]{.underline} 572, 581-82 (Jan. 5, 1999).

As summarized in our October 2002 letter, nothing in FERPA prevents
educational institutions from disclosing information concerning
registered sex offenders provided under the Wetterling Act, including
information made available under the CSCPA amendment to that Act and
information otherwise made available under State sex offender
registration and community notification programs. Further, the
Department of Education will not take enforcement action against any
school district that has a policy or practice of releasing information
that a State (or any agency authorized by a State) provides to the
district under the Wetterling Act on a registered sex offender enrolled
in an educational institution of that district.

I trust that this responds to your inquiry and thank you for the
opportunity to be of assistance.

Sincerely,

/s/

LeRoy S. Rooker

Director

Family Policy Compliance Office