BILL ANALYSIS Ó AB 143 Page 1 Date of Hearing: March 30, 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 pupil 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 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 to gain access to the pupil records of his or her client. 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, even if it would be in the best interest of the minor. 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. The policy argument for the change proposed in this bill is compelling in that it is intended to protect the minor pupil, ensure that the pupil is effectively served by the juvenile AB 143 Page 4 justice system, and ensure that the pupil receives appropriate educational services; however, the primary purpose of both state and federal statute and regulations in this area is to protect the confidentiality of pupil information. As noted above, under FERPA, requesters with legitimate educational interests may gain access to a minor's pupil records without parental permission only under specified exceptions. The relevant exception in this case appears to be found in 20 U.S.C. 1232g(b)(1)(E)(ii), which states that an exception may be granted, by state statute enacted after November 19, 1974, to "State and local officials or authorities to whom such information is specifically allowed to be reported or disclosed?" by state statute, if "(I) the allowed reporting or disclosure concerns the juvenile justice system and such system's ability to effectively serve, prior to adjudication, the student whose records are released; and (II) the officials and authorities to whom such information is disclosed certify in writing to the educational agency or institution that the information will not be disclosed to any other party except as provided under State law without the prior written consent of the parent of the student." The technical question posed by this bill is whether the addition of minor's counsel to state statute conforms to this exception under FERPA. This bill is double referred to the Assembly Committee on the Judiciary, where this question may be more appropriately explored. This bill also proposes to reinforce the existing restriction in state statute 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 proposal clearly conforms to the requirements of FERPA and is also consistent with the intent of state 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 AB 143 Page 5 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 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 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 California Federation of Teachers Kern county Superintendent of Schools Sacramento County District Attorney's Office Opposition None on file Analysis Prepared by : Gerald Shelton / ED. / (916) 319-2087 AB 143 Page 6