BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 143
                                                                  Page  1

          Date of Hearing:   March 23, 2011

                           ASSEMBLY COMMITTEE ON EDUCATION
                                Julia Brownley, Chair
                 AB 143 (Fuentes) - As Introduced:  January 13, 2011
           
           ÝThis bill is double referred to the Assembly Judiciary 
          Committee and will be heard as it relates to the issues under 
          its jurisdiction]
           
          SUBJECT  :   Pupil records: privacy rights

           SUMMARY  :   Amends California Education Code with respect to 
          legal counsel's access to pupil records and with respect to 
          requirements relating to the confidentiality of pupil records.  
          Specifically,  this bill  :  

          1)Requires specified officials and authorities with access to a 
            pupil's records to certify in writing to the school district 
            holding those records that the pupil information will not be 
            disclosed to another party, except as provided under state 
            law, without prior written consent of the pupil's parent or 
            the holder of the pupil's educational rights.

          2)Adds "minor's counsel" to those individuals, including a 
            probation officer or district attorney, who may access pupil 
            records, for relevant and legitimate educational interests, 
            while conducting an investigation related to a crime, a 
            declaration of a person as a ward of the court, or a violation 
            of a condition of probation.

           EXISTING LAW  protects, under the federal Family Educational 
          Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 
          99) and state law, the privacy of student education records by 
          requiring written permission from the parent or eligible 
          student, with specified exceptions, in order for a school 
          district to release any information from a student's education 
          record.

           FISCAL EFFECT  :   This bill is keyed non-fiscal.

           COMMENTS  :   
          FERPA protects the privacy of student education records, and 
          applies to all schools that receive funds under programs 
          administered by the U.S. Department of Education.  FERPA gives 








                                                                  AB 143
                                                                  Page  2

          parents certain rights with respect to their children's 
          education records, and provides for the transfer of these rights 
          to the student when he or she reaches the age of 18 or attends a 
          school beyond the high school level. Students to whom the rights 
          have transferred are termed "eligible students." Under FERPA 
          parents or eligible students have the right to:

          1)Inspect and review the pupil's education records maintained by 
            the school. 
          2)Request that a school correct records which they believe to be 
            inaccurate or misleading.
          3)Attend a formal hearing, if the school decides not to amend an 
            inaccurate or misleading record.
          4)Place a statement with the record setting forth his or her 
            view about the contested information, if the school still 
            decides not to amend the record after a formal hearing.

          Generally, schools must have written permission from the parent 
          or eligible student in order to release any information from a 
          pupil's education record; however, FERPA provides limited 
          exceptions to this requirement (and thus allows schools to 
          disclose records without consent) for specific requesters with 
          legitimate educational interests, including school officials, 
          other schools to which a student is transferring, specified 
          officials for audit or evaluation purposes, appropriate parties 
          in connection with the pupil's financial aid, entities 
          conducting certain studies for or on behalf of the school, 
          accrediting organizations, requesters in compliance with a 
          judicial order or lawfully issued subpoena, appropriate 
          officials in cases of health and safety emergencies, and state 
          and local authorities within the juvenile justice system and 
          pursuant to specific State law.

          State law further clarifies these exceptions, and includes a 
          provision that allows any probation officer or district attorney 
          access, without written consent from the parent or eligible 
          student, to pupil records relevant to the requester's legitimate 
          educational interest, for the purposes of conducting a criminal 
          investigation, or an investigation in regards to declaring a 
          person a ward of the court or involving a violation of a 
          condition of probation.  

          According to the author, this exception "limits access to 
          education records without parent consent to only two of the 
          three necessary juvenile court officers in juvenile proceedings 








                                                                  AB 143
                                                                  Page  3

          - the district attorney and the probation officer.  Minor's 
          counsel is not provided equal access to education records."  
          Given that minor's counsel is not covered under this direct 
          exception, counsel must rely on one of three other methods of 
          gaining access to the pupil records.

             1)   Gain access through the discovery process.  Discovery, 
               however, may not be required in all circumstances where a 
               minor's counsel might have a legitimate educational 
               interest in examining the pupil's records; in addition, 
               discovery would only provide access to pupil records to the 
               extent that the district attorney or probation officer 
               accessed those records themselves.

             2)   Acquire written consent of the parent to allow access.  
               Parents of minors in the juvenile justice system may not be 
               available or willing to provide the written consent 
               necessary for counsel to access a pupil's records.  Note 
               that this bill focuses on minor's counsel, since an 
               eligible pupil (over the age of 18, attending a school 
               beyond high school, or an emancipated minor) would have the 
               legal standing to provide their own written consent to 
               counsel; in the case of a minor, however, the written 
               consent, with few exceptions, would have to be provided by 
               the parent.


             3)   Secure access under a court order or lawfully issued 
               subpoena.  This approach generally does not result in 
               timely access, may create the need for additional (and thus 
               delayed) court proceedings, and may place additional 
               workload on the school district holding the pupil records.

          Each of these three methods of gaining access to pupil records 
          is more limiting than the direct access created by the exception 
          provided for a district attorney and probation officer, and 
          places a greater burden in time and costs on minor's counsel. 
          Thus current law may be seen as creating a non-level playing 
          field that works against the interests of the minor; the author 
          argues that this situation leads to an inequity in the juvenile 
          justice system's ability to ensure that pupils (especially 
          pupils of color and pupils with special needs) receive the 
          educational services that they need.  This bill resolves this 
          issue by allowing minor's counsel the same direct access as is 
          provided to a probation officer and district attorney.








                                                                  AB 143
                                                                  Page  4


          This bill also proposes to reinforce the existing restriction on 
          secondary disclosures, or re-disclosure, of confidential 
          information in pupil records by requiring officials and 
          authorities, who access pupil records under the exceptions noted 
          above, to provide written certification to the school district 
          holding the records that the information accessed will not be 
          re-disclosed to another party, except as provided under state 
          law or without written parental consent.  This proposed 
          requirement is clearly within the intent of both state and 
          federal law concerning the confidentiality of pupil record 
          information.

          Committee amendments:  Committee staff recommends the following 
          amendments: 

          1)This bill proposes to require that specified officials and 
            authorities with access to a pupil's records certify in 
            writing to the school district holding those records that the 
            pupil information will not be disclosed to another party 
            without prior written consent of the pupil's parent or the 
            holder of the pupil's educational rights, "except as provided 
            under state law."  This language should be amended such that 
            the exception to this requirement reads, 'except as provided 
            under FERPA and state law.'  This change is conforms to 
            related exceptions currently provided for in other sections of 
            the Education Code.

          2)The new requirement in 1) above is proposed to be included as 
            a new subdivision (b) in Education Code section 49075; 
            however, this requirement is more germane to the detailed 
            language and requirements that currently exist in Education 
            Code section 49076.  A technical amendment moving this new 
            requirement to section 49076 is in order.

          Previous legislation:  AB 261 (Salas), vetoed in 2009, amends 
          the California Education Code to conform with the FERPA 
          requirements relating to the confidentiality of pupil records.  
          AB 2630 (Salas), vetoed in 2008, was substantially similar to AB 
          261 in 2009.  AB 1663 (Evans), Chapter 454, Statutes of 2007, 
          made various revisions to state special education statutes to 
          bring them in conformity with the 2004 reauthorization of IDEA 
          and implementing federal regulations that became effective in 
          2006.  Earlier versions of this bill also included language 
          dealing with FERPA confidentiality issues; that language was 








                                                                  AB 143
                                                                  Page  5

          deleted from the bill on the Senate Floor after comments from 
          the Department of Finance that these issues were substantive 
          enough to require separate legislation.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Federation of State, county and Municipal Employees, 
          AFL-CIO
          Sacramento County District Attorney's Office

           Opposition 
           
          None on file
           
          Analysis Prepared by  :    Gerald Shelton / ED. / (916) 319-2087