BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 733|
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THIRD READING
Bill No: AB 733
Author: Ma (D)
Amended: 8/24/12 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
SENATE FLOOR : 33-0, 7/1/11 (Consent)
AYES: Alquist, Anderson, Berryhill, Cannella, Corbett,
Correa, De León, DeSaulnier, Dutton, Emmerson, Gaines,
Hancock, Harman, Huff, La Malfa, Leno, Lieu, Liu,
Lowenthal, Negrete McLeod, Padilla, Pavley, Price, Rubio,
Simitian, Steinberg, Strickland, Vargas, Walters, Wolk,
Wright, Wyland, Yee
NO VOTE RECORDED: Blakeslee, Calderon, Evans, Fuller,
Hernandez, Kehoe, Runner
ASSEMBLY FLOOR : 77-0, 5/16/11 (Consent) - See last page
for vote
SUBJECT : Access to pupil records
SOURCE : Superintendent of Public Instruction
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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.
Senate Floor Amendments of 8/24/12 prohibit schools from
disclosing information from pupil records to a volunteer or
other party, and specify that a contractor or consultant
must have a formal written agreement with the school
district before the school may consider allowing access to
information from pupil records.
Senate Floor Amendments of 8/15/12 conform the bill to
existing law recently enacted by AB 143 (Fuentes, Chapter
434, Statutes of 2011). Further, the amendments provide
clarifying cross-references to appropriate federal
regulations regarding student record confidentiality.
ANALYSIS :
Existing law:
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
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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).
(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
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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
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.
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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
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
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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.
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
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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
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.
12.Prohibits schools from disclosing information from pupil
records to a volunteer or other party, and specify that
a contractor or consultant must have a formal written
agreement with the school district before the school may
consider allowing access to information from pupil
records.
Comments
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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
funds, and hopes to demonstrate in this application that
California is working to reconcile the inconsistencies with
FERPA.
Prior Legislation
AB 143 (Fuentes, Chapter 434, Statutes of 2011) 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.
AB 261 (Salas, 2009) was nearly identical to this bill.
Passed the Senate with a vote of 36-0 on July 16, 2009.
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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) 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 8/24/12)
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,
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
PQ:m 8/24/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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