BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2097


                                                                    Page  1





          Date of Hearing:  April 13, 2016


                           ASSEMBLY COMMITTEE ON EDUCATION


                              Patrick O'Donnell, Chair


          AB 2097  
          (Melendez) - As Amended March 18, 2016


          [Note:  This bill has been double referred to the Assembly  
          Committee on Privacy and Consumer Protection and will be heard  
          by that committee as it relates to issues under its  
          jurisdiction.]


          SUBJECT:  Pupil records:  social security numbers


          SUMMARY:  Prohibits the collection of social security numbers  
          (SSNs) of pupils by the California Department of Education  
          (CDE).  Specifically, this bill:  


             1)   Makes finding and declarations regarding the importance  
               of pupil data privacy and the misuse of SSNs by criminals  
               perpetrating identity thefts.


             2)   Prohibits school districts from collecting or soliciting  
               SSNs or the last four digits of SSNs from pupils or their  
               parents or guardians unless otherwise required to do so by  
               state or federal law.


             3)   Authorizes the CDE to prohibit the collection and  








                                                                    AB 2097


                                                                    Page  2





               solicitation of other personally identifiable information  
               as recommended by the SPI and approved by the State Board  
               of Education (SBE).


             4)   Repeals the authority of the SPI to collect and use SSNs  
               of special education pupils as pupil identification  
               numbers.


             5)   Requires the SPI, commencing in 2017-18, to assign a  
               pupil identification number to individuals with exceptional  
               needs for the purposes of evaluating special education  
               programs and related services.


          EXISTING LAW:  Authorizes the SPI to collect and use SSNs-or  
          assign another number if the SSN is not available-of special  
          education pupils to use as pupil identification numbers for the  
          purposes of evaluating special education programs and related  
          services.


          FISCAL EFFECT:  Unknown


          COMMENTS:  Information contained in pupil records is subject to  
          the protection of the federal Family Educational Rights and  
          Privacy Act (FERPA).  State law is generally consistent with  
          FERPA.  These laws permit education agencies, including the CDE,  
          to collect and retain personally identifiable information on  
          pupils, including SSNs.  However, they also prohibit education  
          agencies from disclosing SSNs and other personal information  
          without the prior written consent of the parent or guardian  
          except in specified circumstances.


          Federal regulations define personally identifiable information  
          to include the following:








                                                                    AB 2097


                                                                    Page  3







                 The student's name;


                 The name of the student's parent or other family  
               members;


                 The address of the student or student's family;


                 A personal identifier, such as the student's social  
               security number, student number, or biometric record;


                 Other indirect identifiers, such as the student's date  
               of birth, place of birth, and mother's maiden name;


                 Other information that, alone or in combination, is  
               linked or linkable to a specific student that would allow a  
               reasonable person in the school community, who does not  
               have personal knowledge of the relevant circumstances, to  
               identify the student with reasonable certainty; or


                 Information requested by a person who the educational  
               agency or institution reasonably believes knows the  
               identity of the student to whom the education record  
               relates.



          For purposes of California's assessment program, Education Code  
          60603(t) defines "personally identifiable information" to  
          include "a pupil's name and other direct personal identifiers,  
          such as the pupil's identification number. Personally  
          identifiable information also includes indirect identifiers,  








                                                                    AB 2097


                                                                    Page  4





          such as the pupil's address and personal characteristics, or  
          other information that would make the pupil's identity easily  
          traceable through the use of a single or multiple data sources,  
          including publicly available information."  


            Personally identifiable information may be disclosed without  
          prior written consent in specified cases, including if the  
          disclosure is to comply with a judicial order or lawfully issued  
          subpoena.  In these cases, the educational agency may disclose  
          the information if it makes a reasonable effort to notify the  
          parent or eligible student of the order or subpoena in advance  
          of compliance, so that the parent or eligible student may seek  
          protective action, unless the disclosure is in compliance with:


                 A federal grand jury subpoena and the court has ordered  
               that the existence or the contents of the subpoena or the  
               information furnished in response to the subpoena not be  
               disclosed;

                 Any other subpoena issued for a law enforcement purpose  
               and the court or other issuing agency has ordered that the  
               existence or the contents of the subpoena or the  
               information furnished in response to the subpoena not be  
               disclosed; or


                 An ex parte court order obtained by the United States  
               Attorney General (or designee not lower than an Assistant  
               Attorney General) concerning investigations or prosecutions  
               of an act of domestic or international terrorism.


          In addition, if an educational agency initiates legal action  
          against a parent or student, the educational agency may disclose  
          to the court, without a court order or subpoena, the education  
          records of the student that are relevant for the educational  
          agency to proceed with the legal action as plaintiff.  Also, if  








                                                                    AB 2097


                                                                    Page  5





          a parent or eligible student initiates legal action against an  
          educational agency, the educational agency may disclose to the  
          court, without a court order or subpoena, the student's  
          education records that are relevant for the educational agency  
          to defend itself.


          This bill is in response to the case of Morgan Hill Concerned  
          Parents Association and Concerned Parents Association vs.  
          California Department of Education, in which the plaintiffs  
          allege the CDE is failing to ensure that special education  
          students are receiving the services to which they are entitled.   
          As part of the discovery process, the plaintiffs have sought  
          access to the records of approximately 10 million special  
          education students.  The records are contained in the California  
          Longitudinal Pupil Achievement Data System (CALPADS).


          On May 5, 2014 the court approved a "discovery protective order"  
          and subsequently approved an "E-discovery Protocol," which  
          identifies and describes the CDE databases that may contain  
          discoverable material and discusses methods by which discovery  
          can proceed while protecting personal identifying information.   
          The E-discovery Protocol identified two options for discovery of  
          data.  Option 1 was the transfer of data in CALPADS if and when  
          the plaintiffs establish a secure environment approved by a  
          Special Master.  In Option 2, CDE would retain the data but  
          would facilitate the running of searches to meet the plaintiffs'  
          discovery needs.


          This was widely reported in the media as a court-ordered release  
          of data and resulted in an outcry among parents who were  
          concerned about the security of their children's information and  
          the possibility of identity theft.  In the midst of this, the  
          CDE posted a FERPA notice on its website that included an  
          "Objection to Disclosure of Student Information and Records"  
          form for parents to fill out and send to the court.  After being  
          inundated with the forms, the court held a special status on  








                                                                    AB 2097


                                                                    Page  6





          February 29, 2016 to discuss the public posting of the FERPA  
          notice, the public's response, and the implications for  
          discovery.  


          This was followed by a court order on March 1, 2016 in which the  
          court affirmed the rights of parents to be notified but ruled  
          that parental consent is not required for the disclosure of  
          student records.  In addition, the court eliminated Option 1 and  
          directed the Special Master to proceed with Option 2 and to meet  
          and confer with the parties to recommend further modifications  
          to the E-discovery Protocol.


          There is no way of knowing if the public response to the court  
          order would have been as strong if the CALPADS data did not  
          include SSNs.  There is little doubt, however, that the  
          existence of SSNs in the data base is a major concern.  The CDE  
          uses SSNs as identifiers for special education students but not  
          for regular education students.  However, the CDE is phasing out  
          the use of SSNs and indicates it can comply with the timeline  
          required by this bill.


          Technical amendment needed.  This bill prohibits school  
          districts from collecting or soliciting SSNs from pupils.   
          However, pupils are also enrolled in charter schools and county  
          office of education schools, collectively known as local  
          education agencies (LEAs).  To ensure all students are  
          protected, staff recommends that the bill be amended to replace  
          the reference to school districts with a reference to all LEAs.

          REGISTERED SUPPORT / OPPOSITION:


          Support


          California State PTA








                                                                    AB 2097


                                                                    Page  7







          Opposition


          None received


          Analysis Prepared by:Rick Pratt / ED. / (916) 319-2087