BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 143
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          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 








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          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 








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          - 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 








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          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 








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            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 









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