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 (more) AB 733 (Ma) Page 2 of ? 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 AB 733 (Ma) Page 3 of ? 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 AB 733 (Ma) Page 4 of ? 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 AB 733 (Ma) Page 5 of ? 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 AB 733 (Ma) Page 6 of ? 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 AB 733 (Ma) Page 7 of ? 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 AB 733 (Ma) Page 8 of ? 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. AB 733 (Ma) Page 9 of ? 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) **************