BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 733 (Ma)
          As Amended June 16, 2011
          Hearing Date: June 28, 2011
          Fiscal: No
          Urgency: No
          SK   

                    
                                       SUBJECT
                                           
                            Pupil Records: Privacy Rights

                                      DESCRIPTION  

          This bill would amend various provisions of state law relating 
          to permissible disclosure of student records in order to comply 
          with federal law and preserve state eligibility for more than 
          $1.2 billion in annual federal special education funding.

                                      BACKGROUND  

          Pursuant to the 1997 reauthorization of the Individuals with 
          Disabilities Education Act (IDEA), Congress required states to 
          prove compliance with federal law by submitting a copy of state 
          policies and procedures to the Office of Special Education 
          Programs in the federal Department of Education (USDOE).  After 
          reviewing the state's policies and procedures in 2003, the 
          federal Family Policy Compliance Office issued instructions 
          addressing areas of the Family Educational Rights and Privacy 
          Act (FERPA) where California law fell short of compliance.  
          Under the most recent reauthorization of the IDEA, states are 
          required to provide assurances to USDOE as to compliance with 
          all federal requirements.

          Because California statutes have not yet been conformed to all 
          the requirements of FERPA, the USDOE has annually warned the 
          state "previous outstanding items must be resolved and are 
          conditions of continued federal funding" and has issued a 
          Conditional Grant Award Letter to the California Department of 
          Education when awarding IDEA funds.  If California law is not 
          brought into compliance with federal law, the USDOE is 
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          authorized to sanction the California Department of Education or 
          reduce or withhold federal IDEA funds the state receives for the 
          provision of special education services.  (See generally 34 
          C.F.R., Part 300, Secs. 300.178 - 300.186.)  

          This bill is nearly identical to AB 261 (Salas, 2009) and AB 
          2630 (Salas, 2008).  Both bills were vetoed by the governor who 
          cited Department of Finance concerns that they would create 
          reimbursable state mandates despite the fact that: (1) the 
          Legislative Counsel determined that those two bills were 
          non-fiscal and did not contain a state-mandated local program 
          and (2) even if they did impose a state mandated local program, 
          a state mandate is not reimbursable when the state adopts an 
          implementing statute pursuant to a federal mandate, as the bills 
          proposed to do (Hayes v. Com. on State Mandates (1992) 11 
          Cal.App.4th 1564, 1593).

          In order to preserve eligibility for continued federal funding, 
          this bill, sponsored by the Superintendent of Public 
          Instruction, would amend various provisions relating to 
          permissible disclosure of student records in order to comply 
          with federal law and preserve state eligibility for more than 
          $1.2 billion in annual federal special education funding.  

          This bill was approved by the Senate Committee on Education on 
          June 22, 2011 by a vote of 9-0.

                                CHANGES TO EXISTING LAW
          
          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.  (34 C.F.R. 99.1, 34 C.F.R. 
          99.62.)

           Existing law  prohibits a school district from providing student 
          records to a person without written parental consent or a court 
          order, with specified exceptions.  (Ed. Code Sec. 49076.)
          
           Existing law  requires a school district, notwithstanding the 
          above, to provide access to records that are relevant to the 
          legitimate educational interests of specified requesters, 
          including, among others, the following:
           members of a school attendance review board, and designated 
            school officials and employees; 
           officials or employees of other public schools or school 
                                                                      



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            systems;
           other federal, state, and local officials as authorized by 
            federal or state law; 
           a student 16 years of age or older, or who has completed grade 
            10, and who requests access;
           a district attorney, judge, or probation officer who is 
            participating in or conducting a truancy mediation program or 
            participating in the presentation of evidence in a truancy 
            petition;
           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;
           a judge or probation officer for the purpose of conducting a 
            truancy mediation program or presenting evidence in a truancy 
            petition; or 
           a county agency engaged in the placement of foster youth for 
            the purpose of fulfilling case management responsibilities.  
            (Ed. Code Sec. 49076.)
           Existing law  permits a school district to release information 
          from student records to, among others, the following: 
           people associated with an emergency if the knowledge of the 
            information is necessary to protect the health or safety of a 
            student or other persons;
           agencies or organizations in connection with the application 
            of a student for financial aid, as necessary to determine 
            financial aid eligibility;
           county election officials for the purpose of identifying 
            students eligible to register to vote;
           organizations conducting studies on behalf of educational 
            agencies or institutions, relating to the development, 
            validation, or administration of predictive tests, the 
            administration of student aid programs, or the improvement of 
            instruction; or
           officials and employees of private schools for purposes of 
            transferring enrollment, subject to parental notification, as 
            specified.  (Ed. Code Sec. 49076 (b).)

           This bill  would make various changes to state law designed to 
          comply with FERPA.  Specifically, this bill seeks to conform 
          state law to federal law with respect to exceptions for 
          disclosure of student records by:
           providing, generally, that a school district is not authorized 
            to permit access to student records to a person without 
            written parental consent or under court order, except under 
            specified conditions, and to specified officials, as permitted 
                                                                      



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            by Part 99 of Title 34 of the Code of Federal Regulations; 

           clarifying that existing access to student records under the 
            following circumstances comports with federal law because the 
            circumstances concern the juvenile justice system and the 
            system's ability to effectively serve, prior to adjudication, 
            the student whose records are released pursuant to, and 
            consistent with, Section 99.38 of Title 34 of the Code of 
            Federal Regulations:
             a.   access to student records by a district attorney's 
               office participating in a truancy mediation program, as 
               defined; 
             b.   access to student records by a probation officer or 
               district attorney's office for purposes of conducting an 
               investigation for juvenile adjudication, declaring a person 
               a ward of the court, or involving a condition of probation, 
               so long as the records are relevant to the legitimate 
               education interests of the student; 
             c.   access to student records by a judge or probation 
               officer for the purpose of conducting a truancy mediation 
               program or presenting evidence in a truancy petition, as 
               defined;

           amending the existing exemption providing county election 
            officials access to student information for the purpose of 
            identifying students eligible to register to vote and for 
            conducting programs to offer students an opportunity to vote 
            so as to give the student's parent, or the student if 18 years 
            of age or older, the opportunity to opt out of this voter 
            registration activity.  Only directory information may be 
            disclosed to county elections officials, and that information 
            shall be limited to a student's name, address, telephone 
            number, email address and date of birth;

           amending existing exemptions that allow limited data sharing 
            between schools for purposes of a student transfer, or between 
            schools, a county office of education, or superintendent of 
            schools, for purposes of maintaining a data information 
            system, so long as the above persons have a legitimate 
            educational purpose; 

           clarifying that access to an interagency data information 
            system is limited to authorized officials;

           clarifying that, without the prior written consent of a 
            parent, student identity and location information may only be 
                                                                      



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            disclosed by a school district to law enforcement pursuant to 
            a subpoena or court order, or upon providing information to 
            the school district indicating there is an emergency in which 
            the information is necessary to protect the health or safety 
            of the student; and 

           authorizing a public school to release student records without 
            the consent of a parent or guardian as long as all personally 
            identifiable information has been removed, provided that the 
            school district has made a reasonable determination that the 
            student's identity is not personally identifiable, whether 
            through single or multiple releases, and has taken into 
            account other reasonably available information. 

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            By amending Sections 49076 and 49076.5 of the Education Code 
            the state will help ensure that California will retain its 
            federal IDEA grant funding eligibility so that it can continue 
            to receive the more than $1.2 billion federal grant for the 
            provision of special education services to students with 
            special needs.

            The US Department of Education Ýhas] specifically identified 
            three portions of the Education Code as being out of 
            compliance with FERPA regulations.  As a result of these 
            portions of the Education Code being found to be out of 
            compliance, the state's IDEA Grant has been on conditional 
            status for several years.  Currently, the state is preparing 
            its 2011-12 IDEA Grant application and must be able to 
            demonstrate that it is making every effort to bring the state 
            into compliance with federal law.  If these specific sections 
            of the education code continue to go unaddressed it may 
            jeopardize California's future IDEA eligibility.

          The State Superintendent of Public Instruction, sponsor of the 
          measure, writes that the bill "would come at no cost to the 
          state as it will simply provide that the EC ÝEducation Code] 
          complies with what is required by federal law.  AB 733 has been 
          carefully and inclusively crafted with various stakeholders, 
          including the educational community and law enforcement 
          representatives.  . . .  By passing this measure, you will help 
                                                                      



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          the state take this necessary step to ensure that California's 
          IDEA grant eligibility is not at risk for the 2011-12 fiscal 
          year and that the privacy rights of students and their families 
          are protected."

          2.  Bill would conform state law exceptions for disclosure of 
            student records to federal law
           
          This bill would make various changes to state law designed to 
          comply with FERPA.  With respect to California law's 
          noncompliance with FERPA, this bill would conform state law to 
          federal law on three issues identified by the Family Policy 
          Compliance Office: (1) the release of student records for law 
          enforcement purposes; (2) the release of personal information  
          within student records for voter outreach efforts; and (3) the 
          sharing of student information within an interagency data 
          system.  Many of the changes proposed by the bill are technical 
          and clarifying in nature, but two in particular are substantive. 
           Those provisions would relate to law enforcement access to 
          student records and giving parents an opportunity to opt out of 
          an existing voter registration program.

              a.   Disclosure of student information to law enforcement 
             
            This bill would clarify that, without the prior written 
            consent of a parent, student identity and location information 
            may only be disclosed by a school district to law enforcement 
            pursuant to a subpoena or court order, or upon providing 
            information to the school district indicating there is an 
            emergency in which the information is necessary to protect the 
            health or safety of the student.

            Section 99.30 of Title 34 establishes the general rule that a 
            school must obtain parental written consent prior to 
            disclosing student information.  Federal law provides an 
            exception to this rule if, among other exceptions, a school 
            discloses information pursuant to a "judicial order or a 
            lawfully issued subpoena."  (34 C.F.R. Sec. 99.31 (9)(i).)  
            Authorization for disclosure pursuant to written parental 
            consent or court order is thus required both by existing state 
            and federal law.  

            It is also important to note that this bill and AB 261 and AB 
            2630 include an exception permitting disclosure to law 
            enforcement when they "provide information indicating that 
            there is an emergency in which the information is necessary to 
                                                                      



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            protect the health or safety of the pupil or other 
            individuals."  (See page 7, lines 16-18.)  Federal law 
            expressly requires that schools be permitted to disclose 
            specified student information "if knowledge of the information 
            is necessary to protect the health or safety of the student or 
            other individuals."  (34 CFR, Secs. 99.31 (10), 99.36 (a).)  
            Thus, as drafted, AB 733 authorizes school officials to 
            disclose information to law enforcement under circumstances 
            specifically required by federal law, and therefore the 
            proposed amendment does not establish a reimbursable state 
            mandate.


              b.   Opt out for voting information
             
            This bill would amend existing state law governing disclosure 
            of student information to election officials to require that 
            the student's parent, or the student if 18 years of age or 
            older, first be given the opportunity to opt out of this voter 
            registration activity.  (See page 5, lines 5-12.)  Under the 
            bill, county elections officials would only be able to obtain 
            directory information which is limited to the following 
            information: a student's name, address, telephone number, 
            email address and date of birth.

            Pursuant to federal law, the type of student information that 
            may be disclosed to elections officials under state law can 
            only be disclosed if the student's parent, or the student, if 
            he or she is 18 years of age or older, first is given the 
            opportunity to opt out.  (34 C.F.R. 99.37.)  Because AB 733 
            merely conforms state law to the federal law's opt out 
            requirement, this aspect of the measure also fails to 
            constitute a reimbursable state mandate.  
           
          3.  U.S. Department of Education currently reviewing FERPA 
            regulations  
           
          In April of this year, the U.S. Department of Education (USDOE) 
          issued a Notice of Proposed Rule Making to revise the 
          regulations implementing FERPA.  According to the USDOE, "Ýt]he 
          proposed regulations would give states the flexibility to share 
          data to ensure that taxpayer funds are invested wisely in 
          effective programs."
           
          As noted in the Background, the USDOE has annually urged 
          California to conform its statutes to all of the requirements of 
                                                                      



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          FERPA.  As long as California law does not comply with federal 
          law, the USDOE is authorized to sanction the state or reduce or 
          withhold federal IDEA funds the state receives for the provision 
          of special education services.  

          The sponsor acknowledges the rulemaking process, but notes that 
          the bill is still needed because "this has been a long standing 
          issue that is the last remaining area of identified 
          non-compliance, which is the cause of the conditional status; we 
          determined that the currently proposed federal regulations do 
          not impact the regulations with which we have been found to be 
          in non-compliance; and it's unclear whether compliance 
          legislation will be needed next year depending on what is 
          adopted."

          In addition, by enacting this bill, the state hopes to 
          demonstrate its commitment to working to address the 
          inconsistencies between state law and FERPA. 
           
           4.  Prior bills vetoed  

          This bill is nearly identical to AB 261 (Salas, 2009) and AB 
          2630 (Salas, 2008), which were both vetoed by the governor.  The 
          governor used the same veto message on both bills:

            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.

           
          Support  :  None Known
           
          Opposition :  None Known

                                        HISTORY
           
           Source  :  Superintendent of Public Instruction 

           Related Pending Legislation  :  AB 143 (Fuentes), which adds 
          minor's counsel to the list of individuals who may access a 
          student's records for certain purposes, is scheduled to be heard 
          in this committee on July 5, 2011. 

                                                                      



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           Prior Legislation  :  

          AB 261 (Salas, 2009) See Background and Comment 4
          AB 2630 (Salas, 2008) See Background and Comment 4

           Prior Vote  :

          Senate Education Committee (Ayes 9, Noes 0)
          Assembly Floor (Ayes 77, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Education Committee (Ayes 10, Noes 0)

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