BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 733| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ CONSENT Bill No: AB 733 Author: Ma (D) Amended: 6/16/11 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 : 4-0, 6/28/11 AYES: Evans, Blakeslee, Corbett, Leno NO VOTE RECORDED: Harman ASSEMBLY FLOOR : 77-0, 5/16/11 (Consent) - See last page for vote SUBJECT : Access to pupil records SOURCE : Superintendent of Public Instruction DIGEST : This bill makes numerous technical changes to conform state law with the federal Family Education Rights and Privacy Act regarding access to pupil records without parental consent or judicial order, as well as makes more substantive changes that are permitted by federal law. ANALYSIS : Existing law: CONTINUED AB 733 Page 2 1. 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. 2. Prohibits a school district from giving access to pupil records to any person without written parental consent or judicial order except as follows: A. Requires access to records relevant to the legitimate educational interests of the requester to the following: (1) School officials, employees of the school district, and members and volunteer aids of a school attendance review board. (2) Officials and employees of other public schools, including where the pupil intends to enroll or correctional facilities. (3) Authorized representatives of specified public agencies, where the information is necessary to audit or evaluate a state or federally supported education program or pursuant to a state or federal law (except personally identifiable information unless specifically authorized by federal law). CONTINUED AB 733 Page 3 (4) Other state and local officials to the extent that information is specifically required to be reported pursuant to state law adopted prior to November 19, 1974. (5) Parents of the pupil. (6) A pupil who is at least 16 years old or has completed the 10th grade. (7) Any district attorney who is participating in a truancy mediation program or in the presentation of evidence in a truancy petition. (8) A prosecuting agency for consideration against a parent for failure to comply with compulsory education laws. (9) 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. (10) Any judge or probation officer for the purpose of conducting a truancy mediation program or presenting evidence in a truancy petition. (11) Any county placing agency for the purpose of fulfilling the requirements of the health and education summary or for fulfilling educational case management responsibilities required by the juvenile court or by law, and to assist with the school transfer or enrollment of a pupil. B. Authorizes school districts to release information from pupil records to the following: (1) People associated with an emergency if necessary to protect the health or safety of a pupil. (2) Agencies or organizations in connection CONTINUED AB 733 Page 4 with the application for financial aid, with specified limitations on the use of the information. (3) The county elections official to identify pupils eligible to register to vote and for conducting programs to offer pupils an opportunity to register to vote. (4) Accrediting associations in order to carry out their accrediting functions. (5) Organizations conducting studies for educational agencies for the purpose of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction. (6) Officials and employees of private schools where the pupil is enrolled or intends to enroll, as specified. C. Authorizes school districts to participate in an interagency data information system that permits access to a computerized database system within and between governmental agencies or districts if specified requirements are met. 3. Requires each school district to release any information it has specific to a particular pupil's identity and location that relates to the transfer of that pupil's records to another school district or to a private school in this state, upon request to a peace officer when a proper police purpose exists for the use of that information. Within the general parameters of FERPA, states are permitted to adopt statutes that detail more specific exemptions and procedures if those state statutes are consistent with FERPA. This bill makes numerous technical changes to conform state law with FERPA regarding access to pupil records without parental consent or judicial order, as well as make more CONTINUED AB 733 Page 5 substantive changes that are permitted by federal law. Specifically, this bill: 1. Changes the exception to a prohibition on the release of pupil records by a school district without parental consent or judicial order, and adds a citation to the related federal regulations. 2. Adds an exception to the prohibition against the release of records for state and local officials or authorities to whom the information is specifically allowed to be reported or disclosed pursuant to state law adopted after November 19, 1974. The exception is allowed if the reporting or disclosure concerns the juvenile justice system and the ability to effectively serve the pupil. This bill also adds a citation to FERPA and related regulations, which currently provide for this exception. 3. Clarifies that the exception for a district attorney's office relative to truancy mediation or evidence in a truancy petition concerns the juvenile justice system and the ability to effectively serve the pupil, and cites the federal regulations that authorize this exception. 4. Changes "prosecuting agency" to "district attorney's office" in the exception for consideration against a parent for failure to comply with compulsory education laws. This bill also clarifies this exception is allowed if the reporting or disclosure concerns the juvenile justice system and the ability to effectively serve the pupil, and cites the federal regulations that authorize this exception. 5. Clarifies that a probation officer or district attorney's office may access records for the purposes of conducting an investigation for juvenile adjudication, declaring a person a ward of the court, or involving a violation of a condition of probation, if the records are relevant to the legitimate educational interests of the pupil. This bill provides that these investigations concern the juvenile justice system and the ability to effectively serve the pupil. CONTINUED AB 733 Page 6 6. Clarifies that the exception for a judge or probation officer relative to truancy mediation or evidence in a truancy petition concerns the juvenile justice system and the ability to effectively serve the pupil, and cites the federal regulations that authorize this exception. 7. Restricts the authority of a school district to release pupil record information to a county elections official for the purpose of identifying eligible voters to only those pupils who have not been opted out of this disclosure, and limits the information that may be so obtained to a pupil's name, address, telephone number, e-mail address, and date of birth. 8. Clarifies that, relative to the exception for officials of private schools where the pupil is enrolled or intends to enroll, and the sharing of information by those officials, the legitimate interest of the other person, agency or organization, is to be a legitimate educational interest. This bill also adds a citation to the federal regulations that authorize this exception. 9. Authorizes a public school to release pupil records without parental consent if all personally identifiable information has been removed, provided the district has made a reasonable determination that the pupils' identity is not personally identifiable, whether through single or multiple releases, and has taken into account other reasonably available information. This bill also adds a citation to the federal regulations that authorize this release of information. 10.Clarifies that access to a computerized database permitted through participation by a school district in an interagency data information system is limited to authorized school officials. The bill references the database being maintained by a noneducational governmental agency. This bill adds a prohibition on school districts and county offices of education disclosing personally identifiable pupil information from educational records into this interagency data information system unless permitted by federal CONTINUED AB 733 Page 7 regulations. 11.Limits the release of pupil record information to a designated peace officer or law enforcement agency to those situations where the peace officer or law enforcement agency has obtained prior written parental consent, where there is an emergency in which the information is necessary to protect the health and safety of the pupil or other individuals, or where a lawfully issued subpoena or court order has been obtained. This bill adds a citation to federal regulations that permit this limitation. Comments Why conform to FERPA ? State law has not been amended to reflect updates that have been made to FERPA over several years. The United States Department of Education (USDOE) has annually warned the California Department of Education (CDE) that outstanding issues must be resolved and this resolution is a condition of continued federal funding for special education. As a result, the USDOE has issued a Conditional Grant Award Letter to California when making the annual award of funds under the federal Individuals with Disabilities Education Act. The USDOE is working to amend the regulations implementing FERPA. The 45-day comment period on these proposed regulations closed on May 23, 2011; the USDOE is proceeding with the rulemaking process and expectations are that this rulemaking process will extend, at least, to the end of this calendar year. The USDOE is urging California to conform its state law to exceptions to parental consent prior to the release of pupil records, but in the existing form and as interpreted under current regulations. It is very possible that California statute, even with the changes proposed by this bill, will not conform to federal law and regulations as they change under the federal rulemaking process through this year. On one hand, it may be prudent to wait to conform state law until the new regulations are issued. However, the USDOE continues to threaten California's special education funding. The CDE is currently preparing the state's application for federal special education CONTINUED AB 733 Page 8 funds, and hopes to demonstrate in this application that California is working to reconcile the inconsistencies with FERPA. Related Legislation AB 143 (Fuentes), 2011-12 Session, adds to the list of people who may obtain a pupil's school records, for specified purposes, a minor's counsel of record and requires those in receipt of such records to certify that the information shall not be disclosed to another person. (In Senate Judiciary Committee) Prior Legislation AB 261 (Salas), 2009-10 Session, was nearly identical to this bill. Passed the Senate with a vote of 36-0 on July 16, 2009. The bill was subsequently vetoed by Governor Schwarzenegger whose veto message read: "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 also nearly identical to this bill. Passed the Senate with a vote of 37-1 on August 21, 2008. The bill was subsequently vetoed by Governor Schwarzenegger whose veto message was identical to AB 261. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 6/29/11) Superintendent of Public Instruction (source) ASSEMBLY FLOOR : 77-0, 5/16/11 (Consent) AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, CONTINUED AB 733 Page 9 Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani, Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones, Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Mitchell, Monning, Morrell, Nestande, Nielsen, Olsen, Pan, Perea, V. Manuel Pérez, Portantino, Silva, Skinner, Smyth, Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Gorell, Mansoor, Norby CPM:mw 6/28/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED