BILL ANALYSIS Ó 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 AB 143 Page 2 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. AB 143 Page 3 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 AB 143 Page 4 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. AB 143 Page 5 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.