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