BILL ANALYSIS Ó 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. (more) AB 143 (Fuentes) Page 2 of ? 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 AB 143 (Fuentes) Page 3 of ? 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 AB 143 (Fuentes) Page 4 of ? 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 AB 143 (Fuentes) Page 5 of ? 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 AB 143 (Fuentes) Page 6 of ? 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 "Ýt]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 "Ým]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, "Ýa]cademic performance, emotional and behavioral needs of a minor including AB 143 (Fuentes) Page 7 of ? 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 AB 143 (Fuentes) Page 8 of ? 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) ************** AB 143 (Fuentes) Page 9 of ?