BILL ANALYSIS                                                                                                                                                                                                    



                                                                  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 








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          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.)









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          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 








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          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 








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          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