Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
Technology is great. My school received a big school safety grant, and we bought a bunch of security cameras. In fact, I think that we record every step my students take in the building other than in the bathroom and in the classroom. But all this information is now causing trouble. First, the police department came calling, and they want us to give them access to our video whenever they want. Second, whenever we try to discipline a student, the parent asks us to see the video. We are starting to wonder whether having all these video recordings is more trouble than it is worth.
We have been telling both the police department and the parents that we will not share the video recordings with them. As much as we would like to share the video with the police, we figure that these recordings are FERPA-protected records that we cannot share. By contrast, we have no interest in sharing the videos with parents every time there is a fight, but parents claim that the video recording of their child is a “student record” and demand to see it. You’re a smart guy. Tell us how we can say yes to our police friends and no to the parents.
You have come to the right place.
As to the police, your concern over FERPA is legitimate. If a school district maintains a record about a specific student, that record is subject to the FERPA rules, including a requirement for consent before school officials may disclose personally-identifiable information to third parties, including the police (unless an exception applies, such as directory information, subpoena, etc.). There are two related observations, however, that may help you cooperate with the police.
First, there is a specific exception to the consent requirement that you may invoke under appropriate circumstances – the health and safety exception. The United States Department of Education has described that exception to the consent requirement as follows:
If the school district or school determines that there is an articulable and significant threat to the health or safety of the student or other individuals and that a party needs personally identifiable information from education records to protect the health or safety of the student or other individuals, it may disclose that information to such appropriate party without consent.
The FERPA regulations further provide that, when disclosing such information to third parties under this provision (such as your police department), school officials must record the disclosure and must describe the “articulable and significant threat” in writing so that parents can see and understand the circumstances of the release without consent.
Second and more generally, if your police department friends make a request for a surveillance video and you have not previously identified a need for that video with respect to any particular student, you may release that video because it is not a record regarding a specific student maintained by the school district. Conversely, if you have already identified a need for the video for school purposes (e.g., as documentation of what a specific student did or experienced in a fight), then the FERPA rules will apply.
As to parents, you do have a choice. FERPA permits school officials to describe the contents of a student record instead of sharing it directly. FERPA also permits school officials to disclose a record that involves two students to the extent that such disclosure is necessary to share the record with the parent who wants access to the student record as to his/her child. The typical situation is when a video captures an interaction between two specific students (e.g., a drug transaction or a fight), and in such situations the video is a FERPA-protected record related to both students. While we have been waiting for years for definitive guidance from the United States Department of Education on this tricky issue, we offer the following commonsense advice. If you wish, you can permit the parent of either child to review the video. However, you must be sensitive of the FERPA rights of both students. Accordingly, we further advise that you do not give either parent a copy (unless there is consent or an exception to the consent requirement applies), because once a parent has a copy, you will be unable to protect the confidentiality of that student record as to the other student. Lights, camera, action!
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