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 [email protected].