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UNITED STATES DEPARTMENT OF EDUCATION MAY 13 [S91 Dr. Derek Bok President Harvard University Cambridge, Massachusetts 02138 Complaint No. 0377 Fanily Biucational Rights and Privacy Act (FERPA) Dear Dr. Bok: Mr. Joshua A. Gerstein, an unfergraduate student in Harvard College, has filed a complaint with the Department of Biucation alleging that the University has denied him access to his education records in violation of the Family Bducational Rights and Privacy Act (FERPA). This Office, under authority of section 99.50 of the FERPA regulations (copy enclosed), investigates all such complaints according to the procedures outlined in section 99.65. This section states, in summary: © ‘The Office will notify each complainant and the educational agency or institution against which the violation has been alleged, in writing, that the complaint has been received. © The notification to the agency or institution under this section shall include the stbstance of the alleged violation and the agency or institution shall be given an opportunity to submic a written response. ‘This letter serves to notify you of the allegation and to provide you the opportunity to submit a written response. Mr. Gerstein alleges that the University has denied him access co a summary sheet that was prepared by the Adnissions Camittee in connection with his application for admission to the University. In support of his allegation, tr. Gerstein submitted a copy of a letter dated March 8, 1991, adresse] to him by Ms. Marlyn McGrath Lewis, Director of Admissions, in which she informed ur. Gecstein as follows: Let me explain how the College compiles a student's file. Once a student 1s admitted to the College, ali admissions related docurents not prepared by the Admissions Camnittee, such as the application itself and Various recomendations, are placed in a folder which then becomes the student's file, Tt is sent to the Freshman Dean's Office, and later docusents relating to the student are placed in it. It then will travel to the House where the student lives as an upperclassnan, and similarly grows as new materials are placed in it. The student has full access to this file, other than to confidential letters to which he or she has waiv 28: hat_you reviewed chis file, and presunabl ans | SREIRE chaste Mein id Ora | i | ogre UNITED STATES DEPARTMENT OF EDUCATION Page 2 - Dr. Derek Bok ‘The summary sheets (which contain the readers' comments) that you request are prepared by and kept in the Admissions Office. Summary sheets are, of course, made before the students enroll; by the time they enroll, those records have no further significance to them. ‘The summary sheets are therefore deliberately kept separate from the student files. As you may know, the Buckley Amandnent was enacted to ensure student access to educational records that the institution may use in making decisions that affect a student's future, and to give the student the opportunity to challenge and correct inaccwate information. Since the ‘Anendment. Tomhasis aided 1 Moreover, the summary sheet you request is heavily derivative of the confidential materials to which you waived access; indeed, it excerpts then directly, We therefore believe that [it] is also confidential and that we have no legal obligation to make it available to you. Indeed, we feel strongly that we have an obligation not to do so. ‘The provisions of the FERPA regulations that pertain to Hr. Gerstein's allegation are as follows: Section 99.3 of the FERPA regulations defines "education records" as those records that are "[d]irectly related to a student" and "{mJaintained by an educational agency or institution or by a party acting for the agency or institution." Section 99.3 defines "student" ae “any individual who is or has been in attendance at an educational agency or institution and regarding whan the agency or institut ion maintains education records." Section 99,10 of the FERPA regulations states: "Except as limited under [section 99,12], each eiucational agency or institution shall permit a... . student’ to inspect and review the education records of the student." Section 99,12 states: (>) "A postsecondary institution does not have to permit a student to inspect and review qiucation records that are-- (3) Congidential letters and confidential statements of recommendation placed in_the student's education records after January 1, 1975, if UNITED STATES DEPARTMENT OF EDUCATION Page 3 - Dr. Derek Bok (4) The student has waived his or her cight to inspect and review those letters and statements; and (4i) Those letters and statenents are related to the student 's— (8) Admission to an educational institution; (8) Application for exployment; or (C) Receipt of an honor or honorary recognition. (c) (1) A waiver under paragraph... . (2) Té a student has waived his or her rights umier paragraph (b) (3) (i) of this section, the educational institution shall- (4) Give the student, on request, the names of the individuals who provided the letters and staterents of recomendation[.] [Emphasis added. ] ‘To complete the procedure outlined in section 99. 65(b) (2) of the FEFRA regulations, please investigate Mr. Gemstein's allegation and submit a weitten response within four weeks after you receive this letter. In addition, please include with your response a copy of the University's policy designed to meet the requirements of section 99.6 of the regulations, and the notification to students as cequiral by section 99.7. Please refer to Control Number 0377 in any correspondence regarding this complaint. TE you have any questions conceming the Act, the Department of Biucation's role in its administration, or the Complaint procedure, you may contact Ms. Connie Hoore of my staff. The address and telephone number are as follows: Pamily Policy Compliance Office U.S. Department of Biucat ion Roan 3017, FB-6 400 Maryland Avenue, Sw Washington, DC 20202-4605 (202) 401-2057 Sincerely, LeRoy S. Rooker Director Family Policy Compliance Office