BILL ANALYSIS                                                                                                                                                                                                    






                         SENATE COMMITTEE ON EDUCATION
                             Alan Lowenthal, Chair
                           2011-2012 Regular Session
                                        

          BILL NO:       AB 143
          AUTHOR:        Fuentes
          AMENDED:       April 6, 2011
          FISCAL COMM:   No             HEARING DATE:  June 22, 2011
          URGENCY:       No             CONSULTANT:Lynn Lorber

           NOTE:    This bill has been referred to the Committees on 
          Education and 
                  Judiciary.  A "do pass" motion should include 
          referral to the Committee 
                  on Judiciary.

           SUBJECT :  Access to pupil records.
          
           SUMMARY  

          This bill adds to the list of people who may obtain a 
          pupil's school records, for specified purposes, a minor's 
          counsel of record and requires those in receipt of such 
          records to certify that the information shall not be 
          disclosed to another person.

           BACKGROUND  

          Current 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 people 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  49076.)

          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.  The recipient of the 




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               records is to be notified that transmission of the 
               information to others without the written consent of 
               the parent is prohibited.  (EC  49075.)

          3)   Prohibits, pursuant to the federal Family Educational 
               Rights and Privacy Act (FERPA), federal funds from 
               being made available to any educational agency or 
               institution which has a policy or practice of 
               permitting the release of a pupil's educational 
               records to any individual, agency, or organization 
               without the written consent of the student's parents.  
               FERPA 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.  

          FERPA requires that the officials and authorities to whom 
               the records are released certify in writing that the 
               information is not disclosed to any other party 
               without the prior written consent of the parent.  
               (United States Code, Title 20, Section 1232g and Code 
               of Federal Regulations, Title 34, Sections 99.31 and 
               99.38)

          4)   Requires school districts to adopt a policy 
               identifying those categories of directory information 
               that may be released.  The district is to determine 
               which individuals, officials, or organizations may 
               receive directory information.  "Directory 
               information" is defined as one or more of the 
               following items:

               a)        Pupil's name.
               b)        Pupil's address.
               c)        Pupil's telephone number.
               d)        Date and place of pupil's birth.
               e)        Pupil's major field of study.
               f)        Participation by the pupil in officially 
                    recognized activities and sports.
               g)        Weight and height of members of athletic 
                    teams,
               h)        Pupil's dates of attendance.
               i)        Degrees and awards received by the pupil.




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               j)        Most recent previous public or private 
                    school attended by the pupil.  (EC  49073 and  
                    49061)

           ANALYSIS
           
           This bill  adds a minor's counsel of record to the list of 
          people who may obtain a pupil's school records, and 
          requires those in receipt of such records to certify that 
          the information shall not be disclosed to another person.  
          Specifically, this bill:

          1)   Requires a school district to permit access to pupil 
               records without parental consent or judicial order to 
               a counsel of record for a minor for the purposes of 
               conducting a criminal investigation or an 
               investigation in regards to declaring the minor a ward 
               of the court or involving a violation of a condition 
               of probation.

          2)   Deems a probation officer, district attorney and 
               counsel of record for a minor to be "local officials" 
               for purposes of the federal Family Educational Rights 
               and Privacy Act (FERPA).  See Comment # 2 below.

          3)   Requires the officials and authorities to whom pupil 
               records are disclosed pursuant to this bill, and law 
               enforcement authorities, to certify in writing to the 
               school district that the information shall not be 
               disclosed to another party without the prior written 
               consent of the parent or education rights holder, 
               except as provided pursuant to FERPA.

          4)   Requires pupil records obtained by a probation 
               officer, district attorney or counsel of record for a 
               minor to be subject to specified evidentiary rules.

           STAFF COMMENTS  

           1)   Purpose of this bill  .  According to the author, the 
               exception that allows access to pupil records without 
               parental consent or judicial order to certain court 
               officers for specified purposes "limits access to 
               education records without parent consent to only two 
               of the three necessary juvenile court officers in 
               juvenile proceedings  Minor's counsel is not provided 




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               equal access to these, often critical, records.  
               Minor's counsel often must petition the court for 
               access to these records, wasting valuable court time.  
               Arguably, minor's counsel should have the easiest and 
               most comprehensive access to these records, since they 
               are the one player in the juvenile justice system 
               whose sole charge is representing the best interest of 
               the minor.  AB 143 will simply put minor's counsel on 
               equal footing with the other players in the juvenile 
               justice system and will reduce the need for costly, 
               unnecessary court hearings."

           2)   Family Educational Rights and Privacy Act (FERPA) and 
               local officials or authorities  .  FERPA 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 pupil.  In 
               such cases, FERPA requires that the officials and 
               authorities to whom the records are released certify 
               in writing that the information is not disclosed to 
               any other party without the prior written consent of 
               the parent.  However, federal regulations do not 
               define "official" or "authority" and do not establish 
               exactly what matters concerning juvenile justice would 
               qualify as legitimate purposes.  This bill deems a 
               minor's counsel of record, as an officer of the court, 
               a local official in the same manner that existing 
               state law deems the district attorney and probation 
               officer a local official.   

           3)   Author's amendments  .  The author wishes to amend this 
               bill to address situations where schools receive 
               requests for pupil records from people who are not 
               permitted access, such as the media.  FERPA allows the 
               release of pupil's records, without parental consent, 
               if personally identifiable information is redacted.  

          The author wishes to include an additional amendment to 
               remove "place of birth" from the definition of 
               "directory information."  (See #4 in Background)

           4)   Related legislation  .  AB 733 (Ma) makes several 
               changes to conform to FERPA.  AB 733 is scheduled to 
               be heard on June 22 in this Committee.




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           5)   Previous legislation  .  AB 261 (Salas, 2009) would have 
               made several changes to conform to FERPA but was 
               vetoed by the Governor, whose veto message read:
                    
                    While the stated intent of this bill is purported 
                    to conform state special education law to changes 
                    to the federal Individuals with Disabilities 
                    Education Act, its provisions appear to expand 
                    beyond federal requirements, and therefore could 
                    expose the State to significant reimbursable 
                    state mandate costs.

               AB 2630 (Salas, 2008) was substantially similar to AB 
               261 from 2009.  AB 2630 was vetoed with the same veto 
               message as was provided for AB 261 in 2009.
          
           SUPPORT  

          American Federation of State, County and Municipal 
          Employees
          California Federation of Teachers
          Kern County Superintendent of Schools

           OPPOSITION

           None on file.