[Email message dated October 21, 2003]

Dear Randy,
	Thank you. Your letter (below) was very helpful.  I see now that 
the wording of the adopted OAR that troubled me (section 0230: 
Recordkeeping Requirements) was, in fact, adopted by Congress in 1994, 
as duely recorded in the Federal Register on November, 1996.  I was led 
astray by the web site "Legislative History of Major FERPA Provisions," 
posted by the Federal Department of Education, 
(http://www.ed.gov/print/policy/gen/guid/fpco/ferpa/leg-history.html), 
which clearly indicates that the recordkeeping requirement was amended 
in 2001, in response to the PATRIOT Act. (That site also states that 
amendments were made in 1994; I presume they are referring to the ones 
recorded in the November 21, 1996 Federal Register.)

	[For clarity and for the convenience of our readers (if any), I 
copy the relevant section from the Legislative History web site: "The 
2001 USA Patriot Act excludes from the recordkeeping requirement 
disclosures in response to a court's ex parte order based upon the 
Attorney General's certification regarding terrorism investigations and 
prosecutions."]

	Now, I, and others, need your legal experience again.  Can you 
confirm the following conjecture as to the standing of our newly 
adopted OAR571-20 with respect to the USA PATRIOT Act?  If not, can you 
clarify the situation for us?

	Conjecture:  The old OAR, which pre-dated FERPA 1994/6, was in 
non-compliance with both FERPA 1994/6 and the USA PATRIOT Act in that  
it prescribed reasonable efforts to notify affected students of all 
court-ordered subpoenas for student records, and it required keeping a 
record of such subpoenas.  In 1994/6, FERPA was revised so as to 
*allow* exceptions to the record-keeping and notification rules for 
certain ex parte subpoenas.  In 2001, the USA PATRIOT Act both 
broadened the conditions under which an ex parte subpoena may be sought 
and *demanded* that certain ex parte subpoenas not be disclosed to 
affected students and that no records be kept of such subpoenas.  Thus, 
the newly adopted OAR 571-20 brought the University into compliance 
with both the revised FERPA and with the USA PATRIOT Act (although it 
perpetuates - until December 10, 2003 - the mistaken assumption that 
students will be notified of court-ordered subpoenas and that the 
existence of such subpoenas will be recorded).  Is this correct?        

	Proceeding on the basis of that conjecture, we wonder why the 
University undertook the revision without alerting the Senate to the 
fact that the revision brought the OAR into conformity with 
requirements of the USA PATRIOT Act (as well as FERPA 1994/6), 
especially since the Senate had expressly requested to be informed on 
such developments. 
	A related concern is that the new OAR, as it stands, seems to 
leave the University with no stated policy as to what it *will* do, 
should it receive an ex parte subpoena under either FERPA or, 
especially, the PATRIOT Act. It seems appropriate for the University to 
develop a policy and to revise OAR 571-20 so as to clarify what that 
policy is.        

	I wish to apologize to the President and the Senate for my 
unqualified assertion that the revised OAR did relate to the PATRIOT 
Act, since it can be truly said that the wording of the revision (if 
not the timing or the consequences) were prescribed by FERPA 1994/6.

Peace,
Frank