BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 143 (Fuentes)
          As Amended June 27, 2011
          Hearing Date: July 5, 2011
          Fiscal: No
          Urgency: No
          EDO
                    

                                        SUBJECT
                                           
                            Pupil Records: Privacy Rights

                                      DESCRIPTION  

          Existing law authorizes a probation officer or district attorney 
          to access a student's records without written parental consent 
          for the purpose of conducting a criminal investigation, or an 
          investigation to declare a person a ward of the court, or 
          investigating a possible violation of probation.  This bill 
          would additionally authorize minor's counsel to access pupil 
          records without the written consent of a parent for these 
          specified purposes. 

                                      BACKGROUND  

          The Family Educational Rights and Privacy Act (FERPA) was 
          enacted into law in 1974 for the purpose of protecting the 
          privacy of student education records.  FERPA applies to all 
          schools that receive funds from the U.S. Department of 
          Education.  Certain rights are afforded to parents under FERPA 
          which are in turn transferred to the student when he or she 
          reaches 18 years of age. 

          Specifically, FERPA requires that a school must have written 
          permission from the parent or eligible student in order to 
          release any information from a student's education record.  
          However, FERPA allows schools to disclose those records, without 
          consent, to certain parties including state and local 
          authorities within a juvenile justice system, in accordance with 
          state law.

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          Currently, California authorizes a probation officer or district 
          attorney, acting as a state or local authority, to access a 
          student's records without the written consent of the student's 
          parent for the purpose of conducting a criminal investigation, 
          an investigation to declare a person a ward of the court, or an 
          investigation for a possible violation of probation.  

          This bill would authorize minor's counsel to access a student's 
          records for the same purposes that a probation officer or 
          district attorney may have access without written parental 
          consent.  For purposes of this section, this bill would also 
          deem that probation officers, district attorneys, and minor's 
          counsel of record to be local officials within the juvenile 
          justice system.  By deeming these individuals to be local 
          officials, all three groups would fall within the FERPA 
          exception that allows access to student records without written 
          parental consent to state or local officials within the juvenile 
          justice system, as permitted by state statute. 

                                CHANGES TO EXISTING LAW
           
           1.Existing law  prohibits a school district from permitting 
            access to pupil records to a person without parental consent 
            or under judicial order.  Existing law allows for certain 
            exemptions to this rule including a probation officer or 
            district attorney for the purpose of conducting a criminal 
            investigation, or an investigation to determine whether to 
            declare a person a ward of the court, or involving a violation 
            of a condition of probation.  (Ed. Code Sec. 49076.)

             Existing law  authorizes a school district to allow access to 
            pupil records to a person who has obtained the written consent 
            of the pupil's parent specifying which records are to be 
            released and identifying the party to whom the records may be 
            released.  Existing law requires the recipient of the records 
            to be notified that any further disclosure without the written 
            consent of the parent is prohibited.  (Ed. Code Sec. 
            49075(a).)

             This bill  would additionally authorize minor's counsel of 
            record to access a pupil's records with the written consent of 
            a parent for the same purposes that a probation officer or 
            district attorney is permitted to access the pupil's records. 

           2.Existing law provides that the admission and exclusion of 
            evidence shall be pursuant to the rules of evidence 
                                                                      



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            established by the Evidence Code and by judicial decision. 
            (Welf. & Inst. Code Sec. 701.)

             This bill  would provide that pupil records obtained by a 
            probation officer, district attorney, or counsel of record for 
            a minor would be subject to these evidentiary provisions. 
           
          3.Existing federal law  , the Family Education Rights and Privacy 
            Act (FERPA), requires as a condition to receipt of federal 
            education funds that California law comply with federal 
            student record disclosure protections.  Existing law exempts 
            from the general parental consent requirement certain kinds of 
            disclosures, including disclosures to state and local 
            authorities or officials for the purposes of reporting or 
            disclosure allowed by state statute concerning the juvenile 
            justice system and the system's ability to effectively serve, 
            prior to adjudication, the student whose records are released. 
            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.  (34 C.F.R Secs. 99.31, 99.38.)

             This bill  would provide that a probation officer, district 
            attorney, and counsel of record for a minor shall be deemed to 
            be local authorities or officials in within the juvenile 
            justice system.  This bill would provide that because 
            probation officers, district attorneys and minor's counsel are 
            local authorities or officials within the juvenile justice 
            system, they fall within the FERPA exemption requiring written 
            parental consent.

           4.Existing law  provides that the principal of a school reporting 
            a criminal act committed by an individual with exceptional 
            needs, shall ensure that copies of the special education and 
            disciplinary records of the pupil are transmitted, for 
            consideration by the appropriate authorities to whom he or she 
            reports the criminal act.  Existing law provides that a 
            probation officer or district attorney for the purpose 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. (Ed. Code Secs. 
            49076(a)(I)(i) and 48902 (f).)

             This bill  would require the principal reporting the criminal 
            act of an individual with exceptional needs and the probation 
            officer, district attorney, or counsel of record for a minor 
                                                                      



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            engaged in the above described activities, to certify in 
            writing that the information will not be disclosed to another 
            party without the written consent of the parent or the holder 
            of the pupil's educational rights.  

           5.Existing federal law  , provides that an educational agency or 
            institution, or a party that has received a student's records 
            or information from a student's records may release the 
            records or information without the consent of the parent after 
            removing all personally identifiable information. (34 C.F.R 
            Sec. 99.31(b)(1).)

             This bill  would conform state law to the federal requirement 
            that a student's records may be released without written 
            parental consent to other parties so long as the student's 
            personally identifying information is redacted. 

           6.Existing law  provides that school districts must adopt a 
            policy identifying 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: (1) pupil's name; (2) pupil's 
            address; (3) pupil's telephone number; (4) date and place of 
            pupil's birth; (5) pupil's major field of study; (6) 
            participation by the pupil in officially recognized activities 
            and sports; (7) weight and height of members of athletic 
            teams; (8) pupil's dates of attendance; (9) degrees and awards 
            received by the pupil; and  (10) most recent previous public 
            or private school attended by the pupil.  (Ed. Code Secs. 
            49073 and 49061.)

             This bill  would delete "place of birth" from the list of 
            authorized directory information that may be released and 
            would add "electronic mail address." 

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            Current law, Education Code section 49076(a)(9) is not 
            sufficient to facilitate access to necessary education records 
            to juvenile court officers for the court to make mandated 
            findings regarding a minor's education.  Current law limits 
                                                                      



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            access to education records without parental consent to only 
            two of three necessary juvenile court officers in juvenile 
            proceedings- the district attorney and the probation officer. 
            Minor's counsel, is not provided equal access to education 
            records. This deficiency in the law limits the court's ability 
            to efficiently fulfill their role to the minor and to society. 


            In order for minor's counsel to adequately identify education 
            issues faced by a minor client, counsel must be able to access 
            school records in order to fulfill their duty to effectively 
            represent a minor's best interest as contemplated by Rule of 
            Court 5.663. Under the Rule, counsel has a dual obligation to 
            advocate for the minor holistically as well as to defend a 
            pending petition. This advocacy, informed by investigation, is 
            necessary to assist the court in critical information 
            gathering pursuant to Rule of Court 5.650 and 5.650, which 
            mandates the court's responsibility to ensure the minor's 
            parent is fulfilling their responsibility to participate in 
            the minor's education, as well as assessing the minor's 
            educational needs and entitlements, such as curricula 
            involvement, special education and mental health. 

            Currently, school records may be obtained by minor's counsel 
            in one of three methods: 1) written consent of parent for 
            release of records; 2) subpoena; 3) court order. All three 
            methods have proven to be inefficient by impairing timely and 
            effective representation of clients and delay to court 
            proceedings through continuances, and calendaring of receipts 
            of subpoenaed records proceedings.  This inefficiency and 
            resource drain trickles down to the schools by requiring 
            personnel to appear in court with subpoenaed records taking 
            staff away from school administration.

          2.  Minor's counsel would be authorized to access student records 
            without written parental consent for certain purposes  

          Under existing state and federal law, a school district is 
          generally prohibited from releasing a student's records without 
          written parental consent.  However, existing state law allows 
          for certain exceptions to this general rule.  For example, 
          records may be released to a probation officer or district 
          attorney for the purpose of conducting a criminal investigation, 
          investigating whether or not to make a juvenile a ward of the 
          court, or to determine whether a violation of probation has 
          occurred.  This exception is consistent with FERPA which allows 
                                                                      



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          for the disclosure of students' records without written parental 
          consent to state and local officials, within a juvenile justice 
          system, consistent with state law. 

          This bill would additionally authorize minor's counsel to access 
          a student's records without written parental consent for the 
          purpose of conducting a criminal investigation or an 
          investigation in regards to declaring a person a ward or the 
          court or involving a violation of a condition of probation.  
          According to the author, this additional authorization is 
          necessary because "t]he district attorney and probation officer 
          rarely exercise their authority under state law to access the 
          breadth of education records necessary to assess a child's 
          education which if exercised would typically timely be delivered 
          to minor's counsel as part of the criminal discovery process."  
          The author notes that "the district attorney and probation 
          officer generally focus on the limited area of education records 
          regarding attendance and discipline, limiting the records 
          received and thus limiting the information received through the 
          discovery process."  

          Minor's counsel in the juvenile justice system is not only 
          responsible for defending the juvenile against criminal charges, 
          but is also responsible for ensuring that the juvenile is 
          receiving the proper educational services, health and welfare 
          services, and is being portrayed fairly overall.  As such, 
          minor's counsel should be afforded greater access than the 
          district attorney or probation officer.  While it is necessary 
          to examine a student's attendance and discipline records as it 
          relates to a criminal investigation, it is also important to 
          look at the student's record holistically in order to best serve 
          the minor's interests.  The purpose of the juvenile delinquency 
          proceeding ultimately is to rehabilitate the juvenile.  Focusing 
          solely on whether a student is missing school or is being 
          disciplined does not achieve the public policy goal of 
          rehabilitating a juvenile offender.  The author argues that 
          "m]inor's counsel is in the best position to identify key 
          issues both factual and legal presented by the schools' role in 
          a child's life. This requires careful review of education 
          records to identify educational policies and practices that have 
          the effect of pushing students, especially a disproportionate 
          amount of students of color and students with disabilities, out 
          of schools and towards the juvenile justice system."  

          Further, as noted by the author, "a]cademic performance, 
          emotional and behavioral needs of a minor including 
                                                                      



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          investigation of need for specialized services such as special 
          education, are areas of information that is often only 
          attainable by a thorough review of education records." This bill 
          would help facilitate the multiple roles that local authorities 
          play in the juvenile justice system by extending the ability of 
          minor's counsel to access a student's records without written 
          parental consent. 



          3.  Bill would deem probation officers, district attorneys and 
            minor's counsel of record as local officials for purposes of 
            FERPA  

          Under existing federal law, FERPA requires as a condition of 
          receiving federal education funds that California laws comply 
          with federal student record disclosure protections.  FERPA 
          provides that a student's records may not be disclosed without 
          written parental consent, except in certain cases.  For example, 
          disclosure to state or local officials within the juvenile 
          justice system is exempt from parental consent requirements.  
          However, FERPA does not define a "state or local official" thus, 
          apparently leaving it to the discretion of the individual 
          states.  This seems even more apparent due to the addition of 
          the phrase "allowed by state statute." Currently, in California, 
          only the probation officer or district attorney may access the 
          student's records without written parental consent under this 
          exception. 

          For the purposes of this section, this bill would define a local 
          official to mean a probation officer, district attorney or 
          minor's counsel of record.  The juvenile justice system in 
          California is generally made up of the judge, the probation 
          department, the district attorney, and minor's counsel.  More 
          often than not, minor's counsel is a county employed public 
          defender.  Extending the definition of a local official to 
          include minor's counsel of record would appear to be within the 
          purview of the federal exception that allows state and local 
          officials within the juvenile justice system to access a 
          student's records without written parental consent.  It is also 
          important to consider that the district attorney and minor's 
          counsel are both officers of the court, as well as members of 
          the California State Bar.  As such, they are bound by 
          professional and ethical duties to uphold the law.  Defining a 
          probation officer and district attorney as local officials, 
          while excluding minor's counsel, who is charged with zealously 
                                                                      



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          representing his or her client, is arguably inconsistent with 
          the federal goal of allowing access to local officials within 
          the juvenile justice system for the purpose of effectively 
          serving the student.
          
          Thus, since there is not a federal definition under FERPA for a 
          "state or local official" and since minor's counsel is a key 
          component of the juvenile justice system in California, it would 
          appear appropriate to include minor's counsel of record within 
          the meaning of a local official in California's juvenile justice 
          system.


           Support  :  American Federation of State, County and Municipal 
          Employees (AFSCME); California Federation of Teachers; 
          California Public Defenders Association; Kern County 
          Superintendent of Schools

           Opposition  :  None Known 




                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  AB 733 (Ma) makes changes to state 
          law to conform to FERPA.  This bill passed out of this committee 
          and is on the Senate Floor.

           Prior Legislation  :  AB 261 (Salas, 2009) would have made several 
          changes to conform state law with FERPA, specifically as it 
          relates to disclosure of student records in order to comply with 
          federal law and preserve state eligibility for more than $1.13 
          billion in annual federal special education funding.  This bill 
          was vetoed by the Governor. 

           Prior Vote  :

          Senate Committee on Education (Ayes 9, Noes 0)
          Assembly Floor (Ayes 68, Noes 0)
          Assembly Committee on Judiciary (Ayes 9, Noes 0)
          Assembly Committee on Education (Ayes 10, Noes 0)

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