Amended in Senate July 1, 2014

Amended in Senate June 3, 2014

Amended in Assembly April 22, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1584

Introduced by Assembly Member Buchanan

(Principal coauthor: Assembly Member Chau)

February 3, 2014

An act to add Section 49073.1 to the Education Code, relating to pupil records.

LEGISLATIVE COUNSEL’S DIGEST

AB 1584, as amended, Buchanan. Pupil records: privacy: begin delete third-party end delete begin insert 3rd-party end insert contracts: digital storage services and digital educational software.

Existing law prohibits a school district from permitting access to pupil records to any person without parental consent or without a judicial order, except to specified persons under certain circumstances, including to a contractor or consultant with a legitimate educational interest who has a formal written agreement or contract with the school district regarding the provision of outsourced institutional services or functions by the contractor or consultant.

This bill would authorize a local educational agency, as defined, to enter into a contract with a begin delete third end delete begin insert 3rd end insert party, as defined, to provide services for the digital storage, management, and retrieval of pupil records, as defined, or to provide digital educational software, or both. The bill would require the contract to include specified provisions, including a statement that the pupil records continue to be the property of and under the control of the local educational agency, a description of the actions the begin delete third end delete begin insert 3rd end insert party will take to ensure the security begin insert and confidentiality end insert of begin delete the end delete pupil records, and a description of how the local educational agency and the begin delete third end delete begin insert 3rd end insert party will jointly ensure compliance with specified federal privacy acts. begin insert The bill would require that a contract that fails to comply with the requirements of this bill be rendered void if certain conditions are satisfied. end insert

The bill would provide that, if these provisions are in conflict with the terms of a contract in effect before January 1, 2015, the provisions shall not apply to the local educational agency or the begin delete third end delete begin insert 3rd end insert party subject to that agreement until the expiration, amendment, or renewal of the agreement.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 49073.1 is added to the Education Code,
to read:

49073.1.  

(a) A local educational agency may enter into a
contract with a third party for either or both of the following
purposes:

(1) To provide services, including cloud-based services, for the
digital storage, management, and retrieval of pupil records.

(2) To provide digital educational software that authorizes a
third-party provider of digital educational software to access and
acquire pupil records.

(b) A local educational agency that enters into a contract with
a third party for purposes of subdivision (a) shall ensure the
contract contains all of the following:

(1) A statement that pupil records continue to be the property
of and under the control of the local educational agency. begin insert For
purposes of this paragraph, “pupil records” does not include
pupil-generated content. end insert

begin insert

(2) A description of the means by which pupils may retain
possession and control of their own pupil-generated content, if
any.

end insert begin delete

(2) A prohibition against the third party using personally
identifiable information in individual pupil records for commercial
or advertising purposes.

end delete

(3) A prohibition against the third party using any information
in the pupil record for any purpose other than for the requirements
of the contract.

(4) A description of the procedures by which a parent, legal
guardian, or eligible pupil may review the pupil’s records and
correct erroneous information.

(5) A description of the actions the third party will take,
including the designation and training of responsible individuals,
to ensure the security begin insert and confidentiality end insert of pupil records.
Compliance with this requirement shall not, in itself, absolve the
third party of liability in the event of an unauthorized disclosure
of pupil records.

(6) A description of the procedures for notifying the affected
parent, legal guardian, and eligible pupil in the event of an
unauthorized disclosure of the pupil’s records.

(7) A certification that a pupil’s records shall not be retained or
available to the third party upon completion of the terms of the
contract and a description of how that certification will be enforced.

(8) A description of how the local educational agency and the
third party will jointly ensure compliance with the federal Family
Educational Rights and Privacy Act (20 U.S.C. Sec. 1232g) and
the federal Children’s Online Privacy Protection Act of 1998 (15
U.S.C. Sec. 6501 et seq.) for all pupils, including pupils who are
more than 13 years of age.

begin delete

(9) A contract that fails to comply with the requirements of this
subdivision shall be voidable and all pupil records in possession
of the third party shall be returned to the local educational agency.

end delete begin insert

(c) In addition to any other penalties, a contract that fails to
comply with the requirements of this section shall be rendered
void if, upon notice and a reasonable opportunity to cure, the
noncompliant party fails to come into immediate compliance and
cure any defect. Written notice of noncompliance may be provided
by any party or intended beneficiary of the contract. All parties
subject to a contract voided under this subdivision shall
immediately return all pupil records in their possession to the
local educational agency.

end insert begin delete

(c)

end delete

begin insert ( end insert begin insert d) end insert  For purposes of this section, the following terms have the
following meanings:

begin insert

(1) “Deidentified information” means information that cannot
be used to identify an individual pupil.

end insert begin delete

(1)

end delete

begin insert ( end insert begin insert 2) end insert  “Eligible pupil” means a pupil who has reached 18 years of
age.

begin delete

(2)

end delete

begin insert ( end insert begin insert 3) end insert  “Local educational agency” includes school districts, county
offices of education, and charter schools.

begin delete

(3) “Personally identifiable information” means information
that may be used on its own or with other information to identify
an individual pupil.

end delete begin insert

(4) “Pupil-generated content” means materials created by a
pupil, including, but not limited to, essays, research reports,
portfolios, creative writing, music or other audio files, and
photographs.

end insert begin delete

(4)

end delete

begin insert ( end insert begin insert 5) end insert  (A) “Pupil records” means both of the following:

(i) Any information directly related to a pupil that is maintained
by the local educational agency.

(ii) Any information acquired directly from the pupil through
the use of instructional software or applications assigned to the
pupil by a teacher or other local educational agency employee.

begin delete

(B) “Pupil records” do not include records of teachers and school
administrators that are kept in their sole possession and not revealed
to any other individual except a substitute teacher.

end delete begin insert

(B) “Pupil records” does not mean any of the following:

end insert begin insert

(i) Deidentified information, including aggregated deidentified
information, used by the third party to improve educational
products for adaptive learning purposes and for customizing pupil
learning.

end insert begin insert

(ii) Deidentified information, including aggregated deidentified
information, used to demonstrate the effectiveness of the operator’s
products in the marketing of those products.

end insert begin insert

(iii) Deidentified information, including aggregated deidentified
information, used for the development and improvement of
educational sites, services, or applications.

end insert begin delete

(5)

end delete

begin insert (6 end insert begin insert ) end insert  “Third party” refers to a provider of digital educational
software or services, including cloud-based services, for the digital
storage, management, and retrieval of pupil records.

begin delete

(d)

end delete

begin insert ( end insert begin insert e) end insert  If the provisions of this section are in conflict with the terms
of a contract in effect before January 1, 2015, the provisions of
this section shall not apply to the local educational agency or the
third party subject to that agreement until the expiration,
amendment, or renewal of the agreement.