BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 143| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 143 Author: Fuentes (D) Amended: 6/27/11 in Senate Vote: 21 SENATE EDUCATION COMMITTEE : 9-0, 6/22/11 AYES: Lowenthal, Alquist, Blakeslee, Hancock, Huff, Liu, Price, Simitian, Vargas NO VOTE RECORDED: Runner, Vacancy SENATE JUDICIARY COMMITTEE : 5-0, 7/5/11 AYES: Evans, Harman, Blakeslee, Corbett, Leno ASSEMBLY FLOOR : 68-0, 4/25/11 (Consent) - See last page for vote SUBJECT : Pupil records: privacy rights SOURCE : Author DIGEST : This bill adds to the list of people who may obtain a pupils school records, for specified purposes, a minors counsel of record and requires those in receipt of such records to certify that the information shall not be disclosed to another person. ANALYSIS : Existing law : CONTINUED AB 143 Page 2 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. 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 records is to be notified that transmission of the information to others without the written consent of the parent is prohibited. 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. 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: CONTINUED AB 143 Page 3 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. J. Most recent previous public or private school attended by the pupil. 5. Provides, under FERPA, 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. 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 FERPA. 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. CONTINUED AB 143 Page 4 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. 5. Redefines directory information to no longer include a pupil's place of birth and to also include a pupil's email address. 6. Conforms 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. Comments 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. Previous/Related Legislation AB 733 (Ma), 2011-12 Session, makes several changes to conform to FERPA. Passed the Senate with a votes of 33-0 on July 1,2 011. (Held at Senate Desk) AB 261 (Salas), 2009-10 Session, would have made several changes to conform to FERPA. Passed the Senate with a vote of 36-0 on July 16, 2009. The bill was subsequently vetoed CONTINUED AB 143 Page 5 by Governor Schwarzenegger. His veto message read, in pertinent part: "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), 2007-08 Session, was substantially similar to AB 261 from 2009. AB 2630 passed the Senate with a vote of 37-1 on August 2, 2008. The bill was subsequently vetoed by Governor Schwarzenegger with the same veto message as was provided for AB 261 in 2009. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 7/7/11) American Federation of State, County and Municipal Employees, AFL-CIO California Federation of Teachers California Public Defenders Association California School Boards Association Kern County Superintendent of Schools ARGUMENTS IN SUPPORT : According to the author's office, 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 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. This bill 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, CONTINUED AB 143 Page 6 unnecessary court hearings." ASSEMBLY FLOOR : AYES: Achadjian, Alejo, Allen, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, Eng, Feuer, Fong, Fuentes, Galgiani, Garrick, Gatto, Gordon, Grove, Hagman, Hall, Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jones, Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Mitchell, Nestande, Nielsen, Norby, Pan, Perea, V. Manuel Pérez, Portantino, Silva, Skinner, Smyth, Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Ammiano, Donnelly, Fletcher, Furutani, Gorell, Halderman, Jeffries, Mansoor, Monning, Morrell, Olsen, Vacancy CPM:do 7/7/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED