Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag,
We have a mother demanding to see school security footage from an incident in which her son was fighting with another student. Our administrative team did teacher and student interviews to help with our investigation, and, of course, we looked at the video. That video shows the lead-up of the incident in the hall, but it does not show the actual physical altercation because there were 180 students passing at that time.
Based on the investigation, we imposed appropriate consequences on the perpetrator and took steps to maintain a safety plan for the victim. Even after all of the steps we took, however, the parent is still demanding to see the video of the passing time, claiming it is her legal right to see it because it is an education record of her son.
Can the parent force the district’s hand to see the hallway video or would that violate the privacy rights (FERPA?) of the other 100+ students.
Blurred Lines
Dear Blurred:
Thank you for a great question. Based on the facts you describe, Legal Mailbag concludes that the parent will have the right to view the video one way or the other, for whatever good that would do.
Legal Mailbag notes your legitimate concern over the privacy rights of other students, and you are correct in citing FERPA as the statute we need to consider to answer the question. As your question presumes, FERPA requires that education records be shared with parents, and FERPA generally prohibits the disclosure by school officials of personally-identifiable student information contained in education records maintained by the school district. Exceptions to this prohibition include, for example, disclosure to teachers and others with a legitimate educational interest, disclosure of “directory information,” and production of education records pursuant to a subpoena.
Here, Legal Mailbag starts by asking what is an “education report” that must be shared with the parent and maintained as confidential as to others. The United States Department of Education has issued regulations to implement FERPA, 34 C.F.R. §99.3, and those regulations define “education records” as follows:
Education records.
(a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.
Given this definition, surveillance video is not generally considered a FERPA-protected record because those videos do not relate directly to any individual student. Accordingly, students who may be visible in such videos do not have privacy rights under FERPA. However, when a surveillance video captures information about one or more students that is related to disciplinary or other action, it can fairly be described as an education record as to those students because the video directly relates to those students and is maintained by the school district.
Given that the video does not show the altercation, one may ask how the video could be an education record. However, you do say that the video “shows the lead-up of the incident in the hall.” If by that you mean that one can see the students interacting before they started fighting, that part of the video would be an “education record” as to the two students involved (and conversely it would not be an education record as to other students who may be visible because the video does not relate to them). If such is the case, the mother would be entitled to see the portion of the video that relates to her son interacting with the other student because that part of the video is fairly considered an education record as to these two students.
By contrast, any video that does not provide relevant information about students would not be an education record because it would not be “directly related to a student,” as provided by FERPA. However, once you decide that a video is not a FERPA-protected record, different rules apply. Specifically, school districts are “public agencies” under the Connecticut Freedom of Information Act, and records they maintain are subject to disclosure unless there is an exemption from disclosure in the law. Conn. Gen. Stat. § 1-210(b)(17) exempts from disclosure the following records: “(17) Educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g.” Given that the portion of the video that does not directly relate to individual students would not be a FERPA-protected record, this exemption from disclosure does not apply, and under the FOIA the parent would entitled to access to or a copy of the portion of the surveillance video that does not directly relate to a student.
Finally, there is a special rule when education records apply to more than one student, as is the case with two students fighting or, as here, two students interacting before a fight. A parent is entitled to review such an education record only to the extent that the record relates to his or her child. However, the parent is not entitled to a copy of the record (here, video) because that record implicates the FERPA rights of the other parent. Providing a copy to one parent would make it impossible to protect the FERPA rights of the other parent.