BILL ANALYSIS Ó AB 143 Page 1 Date of Hearing: April 12, 2011 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 143 (Fuentes) - As Amended: April 6, 2011 PROPOSED CONSENT SUBJECT : Pupil Records: Privacy Rights KEY ISSUE : Should a minor's counsel of record have access to the minor's educational records for the purposes of conducting a criminal or probation investigation or an investigation in regards to declaring a person a ward of the court? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS This bill seeks to provide a minor's counsel - usually but not always court-appointed counsel - with the same access to the minor's educational records as district attorneys and probation officers currently enjoy under existing law, so long as the disclosure relates to a legitimate educational interest and is used only for the purposes of conducting a criminal or probation violation investigation or parole or is related to declaring the minor a ward of the court. In addition this bill, consistent with federal law, would require the officials or authorities to whom records are disclosed to certify in writing that the information will not be disclosed to any other person without the prior written consent of the parent. Under existing law, district attorneys and probation officers, for specified purposes, may obtain a minor's educational records without needing to get prior parental consent. However, the minor's counsel can only access those records by obtaining parental consent, a subpoena, or a court order. According to the author and supporters of this bill, these requirements impose inefficient and unnecessary obstacles that greatly hamper the ability of minor's counsel to effectively serve the minor's best interest. The author persuasively argues that in the juvenile court context the minor's counsel, as an officer of the court, should have the same access to educational records as the other key players in the juvenile justice system. As discussed in the analysis below, recent technical and clarifying amendments AB 143 Page 2 addressed the remaining concerns of various stakeholders. The bill passed out of the Assembly Education Committee on consent. There is no known opposition to this bill. SUMMARY : Adds to the list of persons who may obtain a pupil's school records, for specified purposes, a minor's counsel of record, and requires persons in receipt of such records to certify that the information shall not be disclosed to another person, except as specified. Specifically, this bill : 1)Provides that a minor's counsel of record may access pupil records relevant to legitimate educational interests of the minor 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. 2)Specifies that for purposes of the above provision that a district attorney, probation officer, and minor's counsel of record are deemed a "local official" for purposes of regulations promulgated under the Family Educational Privacy Rights Act. 3)Requires officials and authorities to whom pupil records are disclosed to certify in writing to the school district that the information shall not be disclosed to another party, except as provided by federal and state law, without the prior written consent of the parent of the pupil or other person identified as the holder of the pupil's educational rights. 4)Specifies that pupil records obtained pursuant to the provisions of this bill shall be subject to existing evidentiary rules of the juvenile court, as specified. EXISTING LAW : 1)Prohibits a school district from permitting access to pupil records to a person without parental consent or under judicial order except to certain persons for specified purposes, including to a probation officer or district attorney 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. (Education Code Section 49076.) AB 143 Page 3 2)Authorizes a school district to permit access to pupil records to a person who has obtained from the pupil's parent a written consent specifying the records to be released and identifying the party or class to whom the records may be released. Requires the recipient of the records to be notified that transmission of the information to others without the written consent of the parent is prohibited. (Education Code Section 49075(a).) 1)Provides under the federal Family Educational Rights and Privacy Act (FERPA) that no federal funds shall be made available to any educational agency or institution which has a policy or practice of permitting the release of a student's educational records to any individual, agency, or organization without the written consent of the student's parents. Exempts from the general parental consent requirement certain kinds of disclosures, including disclosures to state and local authorities or officials 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. (20 USC Section 1232g (b); 34 CFR Sections 99.31 and 99.38.) COMMENTS : This bill seeks to give a minor's counsel - usually but not always court-appointed counsel - the same access to the minor's educational records as district attorneys and probation officers currently enjoy under existing law, so long as the disclosure relates to a legitimate educational interest and is used only for the purposes of conducting a criminal investigation or parole violation or is related to declaring the minor a ward of the court. In addition this bill, consistent with federal law, would require the officials or authorities to whom records are disclosed to certify in writing that the information will not be disclosed to any other person without the prior written consent of the parent. Under existing law, district attorneys and probation officers may obtain access to records, without parental consent, for the limited purposes of conducting a criminal investigation, a probation violation investigation, or an investigation in regards to declaring a person a ward of the court. However, the minor's counsel of record can only access those records by obtaining parental consent, a subpoena, or a court order. The author and supporters of this bill contend that there is no reason the minor's counsel - as an officer of the court who in the great majority of cases is appointed by the juvenile court - should AB 143 Page 4 not have the same access to educational records, since all three persons are similarly obligated to serve the best interest of the child within the juvenile justice system. Recent Amendments Appear to Address FERPA Concerns . The federal Family Educational Rights and Privacy Act (FERPA) permits states to adopt statutes for authorizing access to educational records, and it makes funding to the states contingent upon the state statute's conformity to FERPA's general regulations. FERPA regulations generally require that student records may not be accessed by any person unless that person obtains parental consent. However, both federal and state laws recognize that the unique issues that arise in juvenile court make it impractical, inadvisable, and in some cases detrimental to the welfare of the child to seek prior parental consent. As such, both federal and state laws make certain exceptions to the general rule requiring parental consent. Specifically federal law provides limited access to educational records in juvenile justice matters to state and local "officials or authorities" where the disclosure serves a legitimate educational purpose and concerns the juvenile justice system's ability to effectively serve the minor student. In such cases federal requires that the officials and authorities to whom it is released certify in writing that the information is not disclosed to any other party without the prior written consent of the parent. (20 USC Section 1232g (b)(1); 34 CFR 99.31 and 99.38.) However, federal regulations neither define "official and authorities" nor say exactly what matters concerning juvenile justice would qualify as legitimate purposes. As such, recent amendments specify that for purposes of the limited circumstances addressed by this bill, a minor's counsel of record, as an officer of the court, is deemed a "local official" in the same manner that existing state law deems the district attorney and probation officer a "local official." In short, federal regulations necessarily leave many details to the state, so long as they are consistent with the overall policy objectives of FERPA. The overall objective of these particular FERPA provisions is to ensure the juvenile justice system's ability to effectively serve the minor; extending to the minor's counsel the same access now enjoyed by district attorneys seems to be fully consistent with that overall objective. Similarly, the provision in the bill requiring that local officials to whom the records are disclosed certify in writing that the information in the records will not be AB 143 Page 5 disclosed to anyone else without parental consent is drawn directly from federal language. ARGUMENTS IN SUPPORT : The California Public Defenders Association (CPDA) supports this bill because it will clarify that minor's counsel may access student records for relevant and legitimate purposes. Existing law, CPDA points out, permits access to records without parental consent to "only two of the three necessary juvenile court officers in juvenile proceedings: the district attorney and the probation officer." Only the minor's counsel is excluded. As such, minor's counsel must either obtain parental consent (which is not always possible or advisable) or obtain a subpoena or court order, which burdens both the counsel and the courts. REGISTERED SUPPORT / OPPOSITION : Support California Public Defenders Association Opposition None on file Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334