BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 143
                                                                  Page  1

          CONCURRENCE IN SENATE AMENDMENTS
          AB 143 (Fuentes)
          As Amended  June 27, 2011
          Majority vote
           
           ----------------------------------------------------------------- 
          |ASSEMBLY:  |68-0 |(April 25,      |SENATE: |38-0 |(August 15,    |
          |           |     |2011)           |        |     |2011)          |
           ----------------------------------------------------------------- 
            
           Original Committee Reference:   ED.  

           SUMMARY  :  Amends California Education Code with respect to legal 
          counsel's access to pupil records by requiring those with access 
          to pupil records to certify in writing to the holder of those 
          records, that the pupil information will not be disclosed to 
          another party, except as allowed, and by adding "counsel of 
          record for a minor" to those individuals who may access pupil 
          records in specified situations; also, amends current law with 
          respect to requirements relating to the confidentiality and the 
          release, or re-disclosure, of pupil records.  

           The Senate amendments  :

          1)Add a pupil's e-mail address to the list of data elements 
            included in a pupil's "directory information."

          2)Authorize any party who is not permitted access to pupil 
            records to request access, and any local educational agency or 
            party who has received those records to provide access, 
            without parental consent, if the records are not personally 
            identifiable.

           EXISTING LAW protects, under the federal Family Educational 
          Rights and Privacy Act (FERPA) (20 United States Code Section 
          1232g; 34 Code of Federal Regulation Part 99) and state law, the 
          privacy of pupil records by requiring written permission from 
          the parent or eligible student, with specified exceptions, in 
          order for a school district to release any information from a 
          student's education record.

           AS PASSED BY THE ASSEMBLY  , this bill was substantially similar 
          to the version passed by the Senate.

           FISCAL EFFECT  :  This bill is keyed non-fiscal by the Legislative 








                                                                  AB 143
                                                                  Page  2

          Counsel.

           COMMENTS  :  FERPA protects the privacy of student education 
          records, and applies to all schools that receive funds under 
          programs administered by the United States Department of 
          Education.  Generally, schools must have written permission from 
          the parent or eligible student in order to release any 
          information from a pupil's record; however, FERPA provides 
          limited exceptions to this requirement (and thus allows schools 
          to disclose records without consent) for specific requesters 
          with legitimate educational interests, including school 
          officials, other schools to which a student is transferring, 
          specified officials for audit or evaluation purposes, 
          appropriate parties in connection with the pupil's financial 
          aid, entities conducting certain studies for or on behalf of the 
          school, accrediting organizations, requesters in compliance with 
          a judicial order or lawfully issued subpoena, appropriate 
          officials in cases of health and safety emergencies, and state 
          and local authorities within the juvenile justice system and 
          pursuant to specific state law.

          State law further clarifies these exceptions, and includes a 
          provision that allows any probation officer or district attorney 
          access, without written consent from the parent or eligible 
          student, to pupil records relevant to the requester's legitimate 
          educational interest, 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.  

          Under this exception, the counsel of record for a minor is not 
          provided equal access to education records, and thus must rely 
          on one of three other methods to gain access to the pupil 
          records of his or her client; these other methods are more 
          limiting than the direct access created by the exception 
          provided for a district attorney and probation officer, and 
          create a non-level playing field that may work against the 
          interests of the minor.  This bill provides that direct access 
          to the counsel of record for a minor, and thus levels the 
          playing field relative to a district attorney and probations 
          officer.

          This bill also reinforces existing restrictions in state statute 
          on secondary disclosures, or re-disclosure, of confidential 
          information in pupil records by requiring officials and 








                                                                  AB 143
                                                                  Page  3

          authorities, who access pupil records under the exceptions noted 
          above, to provide written certification to the school district 
          holding the records that the information accessed will not be 
          re-disclosed to another party, except as provided under state 
          law or without written parental consent.  This proposal clearly 
          conforms to the requirements of FERPA and is also consistent 
          with the intent of state law concerning the confidentiality of 
          pupil record information.

          The bill also applies evidentiary rules in current law to pupil 
          records obtained under the provisions of the bill, and 
          authorizes the release or re-disclosure of non-identifiable 
          pupil record information, without parental consent, by agencies 
          or individuals who are provided access to those pupil records.  

          This bill was double referred and heard in both the Education 
          Committee and the Judiciary Committee in each house of the 
          Legislature, as the bill relates to the issues under those 
          committees' respective jurisdictions.

          Related and previous legislation:  AB 733 (Ma), pending in the 
          Senate, amends the California Education Code to conform with the 
          FERPA requirements relating to the confidentiality of pupil 
          records.  AB 261 (Salas), vetoed in 2009, and AB 2630 (Salas), 
          vetoed in 2008, were substantially similar to AB 733.


           Analysis Prepared by  :    Gerald Shelton / ED. / (916) 319-2087 


                                                               FN: 0001580