With the use of video surveillance systems fully entrenched in school districts nationwide, school officials have seen an increase in parental requests for access to such videos, particularly as they relate to disciplinary matters, bullying allegations, or allegations of misconduct.  Such requests are governed by the federal Family Educational Rights and Privacy Act (“FERPA”), which establishes privacy protections and parental access rights for education records of students.  On April 19, 2018 the Family Policy Compliance Office (“FPCO”), a wing of the US Department of Education’s Office of the Chief Privacy Officer, published guidance titled “FAQs on Photos and Videos under FERPA.”  The recent guidance provides clarification for school officials regarding when a photo or video of a student constitutes an education record under FERPA and who may access such images.

As a general matter, FERPA provides that a parent must be given the opportunity to inspect and review their child’s education records – meaning those records, files, documents, and other materials which 1) contain information directly related to a student and 2) are maintained by an educational agency or institution.  (See generally 20 U.S.C. §1232g(a)(4)(A); 34 C.F.R. §§ 99.10-99.12.)  If a video or photo meets these definitions, it may be considered an education record.  

With respect to video and photos, the recent guidance provides a series of factors clarifying when such images are “directly related” to a student.  The guidance notes that videos or photos are likely to be directly related to a particular student when the images are used for disciplinary action or other official purposes, contain a depiction of an activity (e.g. shows a student(s) in violation of a law or school policy, shows a student(s) getting injured or attacked), or the entity taking the image intends to make the student(s) the focus of the photo or video (e.g. ID photo, recording of a student presentation).  Based on these factors, a video or photo image may simultaneously be an education record of two or more students (e.g. where a surveillance video shows two students fighting on a school bus, the school maintains the video, and the school uses the video images to discipline both students).  

Conversely, the guidance notes that images are not directly related to students incidentally appearing in a photo or video, or who merely appear in the background (e.g. a student appearing in the background of a video capturing a fight involving two different students).  If not directly related to a student, the video or photo is not an education record of such a student.  The guidance notes that this determination should be made on a case-by-case basis after examination of the relevant video or photo images. 

Of particular importance to school officials, the guidance addresses the question of who may access video or photo images that are considered education records.  This question most often arises when a video captures an incident involving two students, and the parents of one or both students request access to the video footage.  FPCO clarified that when a video or photo is an education record of a student, the parent of a student to whom the video or photo directly relates may request to inspect and review the image.  Importantly, FPCO noted that the same applies in a situation where a video or photo directly relates to multiple students – that is, the school must allow the parent to inspect the portion of the video or photo that directly relates to their child, though the guidance advises schools to redact portions of the video or photo relating to other students if redactions can be accomplished without destroying the meaning of the record.  The guidance cautioned that FERPA provides parental rights to access and inspect education records of their children, but does not generally grant a parent the right to obtain a copy of such education records. 

In addition to addressing this common scenario, the guidance provides information regarding a school district’s ability to release video or photo education records to law enforcement, and clarifies when such videos or photos are considered law enforcement records under FERPA, and what such a distinction means. 

The full text of the April 19, 2018 FPCO guidance is available at:

https://studentprivacy.ed.gov/faq/faqs-photos-and-videos-under-ferpa

Policy guidance letters issued by federal and state agencies and their subdivisions, including the FPCO guidance discussed herein, are informal, nonbinding, and do not establish a policy or rule that would apply in all circumstances.  School district administrators should consult with legal counsel as needed to resolve matters related to parental requests to access videos or photo images that are, or may be, education records.

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com.  

With the start of the 2014-2015 school year upon us, schools routinely post the class assignments in the public domain enabling other students and/or parents access to this information.  Many parents have expressed concern that such posting before the first day of class of the student’s name, room number, and the names of the students assigned to a particular teacher violates the Family Educational Rights and Privacy Act ( FERPA)(20 U.S.C. §1232g; 34 CFR Part 99).  FERPA requires that schools  have written permission from the parent or eligible student in order to release any information from the student’s record unless the circumstance or the particular party to whom the information is being released fall under one of the enumerated exceptions. See 34 CFR §99.31.

The simple act of posting the classroom assignment raises the following issues:  Is the class list a student record and therefore parent or eligible student consent is required to disclose?  May the class list be classified as directory information?  Is the school releasing confidential information without parent/eligible student permission if the class list is classified as directory information?  The answer to the first two questions is “yes” and the answer to the third question is “no”.

Schools must notify parents and eligible students annually of their rights under FERPA, which includes the right to disclose directory information without consent. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school. Therefore, a practical solution to this potential  FERPA violation is for Districts to include classroom and teacher assignment in their policy’s list of directory information thereby removing such information as being classified as confidential student record information that may not be disclosed without consent.  However, schools must allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information.  If the student classroom assignments are posted prior to the start of the school year, have the parents and eligible students been afforded a reasonable amount of time to request that the school not disclose directory information?  Probably not.  Therefore, districts may want to avoid any public posting of classroom/teacher assignments and provide the information to individual households.

 

An April 15, 2009 letter from the Family Policy Compliance Office (FPCO) addresses a complaint filed by a parent indicating that the school improperly disclosed the student’s private educational information to a step-parent and grandparent during a meeting at school.  If the child’s father has parental rights and permitted the disclosure to the step-mother and grandmother, FERPA does not prohibit the disclosure, despite the objection of the biological mother.  Furthermore, the term "parent" includes "an individual acting as a parent in the absence of a parent or a guardian".  The US DOE has determined that a parent is "absent" if he or she is not present in the day-to-day home environment of the child.  Therefore, if the step-parent is present in the home of the child on a day-to-day basis and the mother is not present, the step-parent would be considered a "parent" for purposes of FERPA and, according to the FPCO letter, disclosures of educational records to the step-parent would be permissible.

Final revisions to the FERPA regulations were published December 9, 2008 in the Federal Register.  Key changes include the following:

  • "Attendance" at a school for purposes of protection under FERPA includes attendance in person or by correspondence or electronic means for purposes of students not able to be physically present in the classroom;
  • A definition of "biometric record" has been added for purposes of "directory information" that may be disclosed upon prior notification to parents and students – this would include fingerprints, voiceprints, DNA sequence, retinal and facial characteristics and handwriting;
  • "Directory information" has been restricted so that it may not include a student’s social security number or student ID number, except as specifically provided;
  • Directory information may include a student ID number if the student ID number cannot be used to gain access to educational records without the use of another access identifier such as a password or other factor known only by the user;
  • "Disclosure" of an educational record does not include disclosure to the party that provided or created the record;

Continue Reading Key Revisions to FERPA Regulations

Federal District Court Case Further Clouds Issue of When Student Names May Be Redacted from Disclosed Documents

In a world where few disputes of this nature find their way into federal district court, every published decision on the issue of what constitutes an “educational record” for purposes of the Family Educational Rights and Privacy Act (FERPA, sometimes known as the “Buckley Amendment”) receives a great deal of scrutiny from those in the field of education. In Wallace v. Cranbrook Educational Community, 106 LRP 57872, 2006 WL 2796135 (E.D. Mich. 2006), the Eastern District of Michigan issued an opinion that would appear to cloud even further the issue of when student names may legitimately be redacted from documents disclosed to outside third parties in order to protect student confidentiality under FERPA.

The plaintiff, Delvren Wallace, was an employee of the defendant Cranbrook Educational Community, serving in the capacity of a maintenance/equipment mover, when he was discharged for alleged improper sexual behavior toward students. The termination was justified in part by student statements which were redacted to remove the names and other personally identifiable information from the statements. 

Continue Reading Redacting Student Names