For the past decade the U.S. Department of Education (“Department”) would only provide “informal advice” to school districts with questions about how the Family Educational Rights and Act (“FERPA”) applies to surveillance videos. On December 7, 2017, the Department FINALLY released a letter which provides school districts with some guidance on how FERPA applies to video surveillance tapes and student witness statements – at least in the context of student discipline.
A brief review is in order. FERPA is a federal law that protects the privacy of students’ education records and the personally identifiable information (“PII”) contained in those records.
FERPA affords parents and eligible students the right to have access to their education records. FERPA also prohibits educational agencies from disclosing student education records or the PII contained in those records without prior, written, consent unless the disclosure meets an exception.
These two rights – the right to access education records and the right to prohibit the disclosure of education records – creates an inherent tension when the record contains information about more than one student. In this case, the records involved video surveillance and student witness statements from a hazing incident that the school district used to discipline the students. The school district considered the videos and statements to be the education records of each student involved in the incident which the parents had the right to access. Yet, the surveillance videos and witness statements were also the education records of the other students involved in the incident and, thus, prohibited from disclosure under FERPA. So how is a school district to handle a complicated issue like this when the education record contains information on more than one student?
The Department advises that, when an education record contains information on more than one student, the parent may inspect and review only the specific information about his or her own child – unless the information about the other student or students cannot be segregated and redacted without destroying its meaning. In the context of video surveillance, segregation or redaction would involve either (1) blurring the faces of the other students or (2) editing the video in such a way that it only shows the actions of the student requesting the education record.
In most circumstances, however, school districts simply do not have the technology to blur faces or edit videos in order to redact or segregate information about the other students. In this case, the Department concludes, somewhat surprisingly, that the school district “must provide the parents of a disciplined student (or the student if the student is an eligible student) with the opportunity to inspect and review the video.”
This means that, according to the Department’s new guidance, if the school district cannot redact or segregate the education record, the district must allow the parent or eligible student to review an unredacted copy of the education record – at least in the context of student discipline. The Department attempted to mitigate the impact of this decision by emphasizing – repeatedly – in its guidance that FERPA does not require a school district to actually provide copies of education records. It only requires the school district to provide access to the records.
In addition, the Department emphasized that its guidance does not affect state privacy statues. For instance, Ohio has its own version of FERPA – R.C. 3319.321. The letter leaves open the question of what, if any, impact the Department’s guidance has on R.C. 3319.321. Accordingly, school officials are strongly encouraged to contact legal counsel when responding to FERPA inquiries regarding student discipline records that involve multiple students. Our team of experienced attorneys are ready to assist school officials in responding to these complicated questions.
To read the letter, please click here.
Authors: Matthew John Markling and Patrick Vrobel.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.