BILL ANALYSIS Ó 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