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)
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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 "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
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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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