[Email message dated November 7, 2003]

Dr. Stahl,

I would first like to apologize for the delay in my reply.

I think that your email serves to answer your question. The language in 
the rule about law enforcement subpoenas is taken from the 1994 FERPA 
amendments (and 1996 regulations), not the USA PATRIOT Act. Repeal of 
the USA PATRIOT Act would not result in modification of the new rule in 
any way. We would still have to comply with valid law enforcement 
subpoenas due to the 1994 FERPA Amendments. The new rule would still be 
necessary if we wish to accurately inform students about the 
University's potential obligations in relation to student records. The 
existence of the USA PATRIOT Act doesn't make a difference in the 
content of the rule. 

Furthermore, the existence of language in the rule about law 
enforcement subpoenas has no effect on the University's obligation to 
comply with such subpoenas. While other parts of the policy present 
compliance issues, this one does not. The purpose of the language is to 
provide notice to students. The absence of the language would only 
serve to mislead students. The rule lets students know that if their 
records are subpoenaed the University would release them and if ordered 
to not inform the student the University would comply with that order. 
Students should know that this is the case.  A University 
administrative rule cannot protect students from valid subpoenas. A 
University administrative rule cannot make an otherwise valid law 
enforcement subpoena invalid, and it cannot authorize employees to 
refuse to comply with valid subpoenas. The law requires that University 
employees comply, though the University, through the Department of 
Justice, can and sometimes does object to subpoenas that it believes 
are invalid or improper in some legally cognizable way.

You have also asked about the compliance issues presented by the 
decision to delay the effectiveness of the sentence at issue. The delay 
was implemented in recognition of the Senate's concern for this issue 
and in order to allow the Senate an opportunity for discussion. While I 
don't believe that the delay presents a compliance issue, this 
situation is clearly less than optimal. The language may very well 
confuse some readers of the rule.  As a practical matter, however, the 
delay does not affect the University's obligation to comply with valid 
law enforcement subpoenas.  

In the larger context of the entire student records policy, you have 
identified a sentence that you believe is connected to the USA PATRIOT 
Act. The student records policy had not received a comprehensive update 
for at least 20 years. Critical sections did not accurately reflect the 
law or University practice. The provisions on retention and destruction 
of student records, which are not FERPA driven, had been superseded by 
state law. The old rules contemplated paper records maintained by one 
particular office depending on subject matter. Today, many, if not 
most, of the relevant records are maintained in computer databases. It 
is important that our rules reflect not just the law but actual 
practice so that they inform students, faculty, and administrators 
accurately. Melinda and Herb identified the need for a comprehensive 
update of the policy as early as 1998. One of Melinda's law clerks 
produced some draft revisions in 2000 and 2001. However, that effort 
went dormant due to lack of personnel. I restarted the effort after I 
arrived in January 2003. Given this history and context, it is not 
surprising to me that Melinda does not believe that there is a 
connection between the student records policy and the USA PATRIOT Act. 
The USA PATRIOT Act has no effect on the content of the policy.

Randy Geller
Director of Policy and Legal Affairs
1226 University of Oregon
Eugene, OR  97403-1226
Voice: 541-346-3082
Fax: 541-346-6110
Email: rgeller@uoregon.edu