Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

Our school has a number of security cameras, which are a blessing and a curse. Sure, it is nice to be able to identify students who are up to no good. But the rules about whether and how we can use video footage are giving me a headache.

A case in point is the security camera video of a serious student altercation last week. The video is crystal clear in showing that one student started the fight and that the other student was just defending herself. Unfortunately, there are three other students in the frame who are watching the action. We sent out FERPA releases to the parents of all the students so that we could show the video at the expulsion hearing. But the mother of a student who was just a bystander called me to let me know that she would not be signing the release. I asked her why and she said that she didn’t want her daughter to get involved.

The hearing is next week and I need your help. Can I testify at the hearing as to what I saw on the video? Should I subpoena the video? Help!

Thank you,
Roll the Tape

Dear Roll:

You have certainly made this more complicated than was necessary. You had no duty to send out FERPA releases; and, as to the students who were bystanders, the video is not a FERPA record at all.

Personally-identifiable student information is subject to FERPA, but only if it is contained in an “education record.” A security camera video is an “education record” under FERPA, in turn, only if two conditions are met. First, the video must “contain information directly related to a student;” and, second, the video must be “maintained” by the school district. 20 U.S.C. § 1232g (emphasis added). The second condition is clearly met, but, as to the students observing the fight, the first is not. Once the video was identified as having relevant information, it “directly related” to the two students fighting. By contrast, the video had nothing to do with the bystanders and thus was not a FERPA record as to them.

Moreover, you had no need to seek FERPA releases from anyone. Presumably, any expulsion hearing will be conducted confidentially in executive session. Furthermore, the decision-maker (either board of education members or a hearing officer) will be “school officials” with a legitimate educational interest in the information. Under FERPA, there is no need to obtain parent consent to disclose a record to such a school official.

The issue that comes up most frequently with security camera videos is how to deal with a request to view the video by the parents of either a perpetrator or a victim. The concern is that such a video would typically include images of both students, and thus the parent of the perpetrator would see a record related to the victim or vice versa. Legal Mailbag has long advised that school officials may permit the parents of students to whom the video directly relates to view the video but not to have a copy if another student is depicted in the video. Last year, the Office of the Chief Privacy Officer, the United States Department of Education office in charge of administering FERPA, issued guidance to the same effect. See Letter to Wachter dated December 7, 2017, from Hawes, Director of Student Privacy Policy, Office of the Chief Privacy Officer. Accordingly, when parents want to see a security video featuring their child, you may go ahead and let them see the video, but you should not give them a copy if the security video is a FERPA record as to any other students.

Now you know everything that Legal Mailbag knows about security videos. That wasn’t so bad, was it?