BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON EDUCATION
                              Senator Carol Liu, Chair
                                2015 - 2016  Regular 

          Bill No:             AB 2097          
           ----------------------------------------------------------------- 
          |Author:    |Melendez                                             |
          |-----------+-----------------------------------------------------|
          |Version:   |April 25, 2016                             Hearing   |
          |           |Date:     June 15, 2016                              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:     |Yes             |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|Lynn Lorber                                          |
          |           |                                                     |
           ----------------------------------------------------------------- 
          
          Subject:  Pupil records:  social security numbers


            SUMMARY
          
          This bill prohibits a local educational agency from collecting  
          or soliciting social security numbers or the last four digits of  
          social security numbers from students or their parents.

            BACKGROUND
          
          Existing federal law, the Family Educational Rights and Privacy  
          Act (FERPA):

          1)   Generally requires schools to have written permission from  
               the parent or eligible student in order to release any  
               information from a student's education record.  However,  
               FERPA allows schools to disclose those records, without  
               consent, to the following parties or under the following  
               conditions:

               a)        School officials with legitimate educational  
                    interest.

               b)        Other schools to which a student is transferring.

               c)        Specified officials for audit or evaluation  
                    purposes.

               d)        Appropriate parties in connection with financial  







          AB 2097 (Melendez)                                      Page 2  
          of ?
          
          
                    aid to a student.

               e)        Organizations conducting certain studies for or  
                    on behalf of the school.

               f)        Accrediting organizations.

               g)        To comply with a judicial order or lawfully  
                    issued subpoena.

               h)        Appropriate officials in cases of health and  
                    safety emergencies.

               i)        State and local authorities, within a juvenile  
                    justice system, pursuant to specific State law.

          2)   Authorizes schools to disclose, without consent,  
               "directory" information such as a student's name, address,  
               telephone number, and date and place of birth.  Existing  
               law requires schools to notify parents and eligible  
               students about directory information and allow them a  
               reasonable amount of time to request that the school not  
               disclose such information.  Existing law requires schools  
               to also notify parents and eligible students annually of  
               their rights under Family Educational Rights and Privacy  
               Act (FERPA).  (United States Code, Title 20, § 1232(g), and  
               Code of Federal Regulations, Title 34, Part 99)

          Existing state law:

          1)   Authorizes the Superintendent of Public Instruction (SPI),  
               in order to assist the State in evaluating the  
               effectiveness of special education programs, to collect and  
               use social security numbers of individuals with exceptional  
               needs as student identification numbers.  

          2)   Prohibits the SPI from disclosing personally identifiable,  
               individual student records to any person, institution,  
               agency, or organization except as authorized by federal  
               law.  (Education Code § 56601)

          3)   Prohibits a school district from permitting access to  
               student records to any person without written parental  
               consent or pursuant to a judicial order except as set forth  








          AB 2097 (Melendez)                                      Page 3  
          of ?
          
          
               in federal law.  Existing law requires access to those  
               particular records relevant to the legitimate educational  
               interests of the requester to be permitted to specified  
               requesters of that information.  (EC § 49076)

          4)   Requires local educational agencies to retain individual  
               student records, including a unique student identification  
               number.  (EC § 60900)

            ANALYSIS
          
          This bill prohibits a local educational agency from collecting  
          or soliciting social security numbers or the last four digits of  
          social security numbers from students or their parents.   
          Specifically, this bill:

          1)   Prohibits a school district, county office of education, or  
               charter school from collecting or soliciting social  
               security numbers or the last four digits of social security  
               numbers from students or their parents, unless otherwise  
               required to do so by state or federal law.  

          2)   Authorizes the California Department of Education to  
               additionally prohibit the collection and solicitation of  
               other personally identifiable information, as recommended  
               by the SPI and approved by the State Board of Education.

          3)   Eliminates the authority for the SPI to collect and use  
               social security numbers, associated with students receiving  
               special education or related services.

          4)   States legislative findings and declarations regarding  
               prioritizing student data privacy, and that social security  
               numbers are the single most misused piece of information  
               associated with identity theft.





          STAFF COMMENTS
          
          1)   Need for the bill.  According to the author, "In 2012, the  
               Morgan Hill Concerned Parents Association and the Concerned  








          AB 2097 (Melendez)                                      Page 4  
          of ?
          
          
               Parents Association files a lawsuit alleging the Department  
               was not ensuring that students with disabilities were being  
               given the appropriate special education services mandated  
               under federal law.  As part of the discovery process, the  
               plaintiffs requested access to thousands of data points  
               stored by the Department, many of which contain personally  
               identifiable information (such as social security numbers)  
               of not only students with disabilities, but all children  
               who are attending or who have attended a California school  
               at any time since January 1, 2008.  The judge ruled to  
               allow the plaintiffs access to the data, and as a result,  
               the information of 10 million students may be released to  
               the plaintiffs, a parent-run non-profit organization.  Due  
               to the amount of opposition the judge received from  
               parents, she ordered that the Department maintain custody  
               of the most sensitive of its databases California  
               Longitudinal Pupil Achievement Data System (CALPADS), while  
               running searches for information requested by the  
               plaintiffs.  The court also reiterated that no student's  
               personally identifiable information may be released to  
               plaintiffs unless they demonstrate to the satisfaction of  
               the court that the method to be used to store the sensitive  
               student data is secure."

          2)   Morgan Hill case.  This bill is in response to issues  
               related to Morgan Hill Concerned Parents Association and  
               Concerned Parents Association vs. California Department of  
               Education, in which the plaintiffs allege the California  
               Department of Education (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 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  








          AB 2097 (Melendez)                                      Page 5  
          of ?
          
          
               2, CDE would retain the data but would facilitate the  
               running of searches to meet the plaintiffs' discovery  
               needs.

          The ensuing media coverage reported that the court ordered the  
               release of data, resulting in a huge 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 Family Educational Rights  
               and Privacy Act (FERPA) notice on its Web site 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 February 29, 2016, to discuss the  
               public posting of the FERPA notice, the public's response,  
               and the implications for discovery.  
          On March 1, 2016, 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.  This means that the  
               California Department of Education (CDE) maintains custody  
               of California Longitudinal Pupil Achievement Data System  
               (CALPADs) data, while running searches for information  
               requested by the plaintiffs.  The court also reiterated  
               that no student personally identifiable information may be  
               released to the plaintiffs unless and until they  
               demonstrate to the satisfaction of the court that the  
               method to be used to store the sensitive student data is  
               secure.  The parties continue to litigate the extent of the  
               disclosure of student data.

          3)   Only special education.  The CDE used social security  
               numbers as identifiers only for students receiving special  
               education as a means to comply with federal requirements to  
               track the postsecondary activities of students (neither  
               postsecondary education nor the workplace uses the unique  
               student identifiers).  The CDE indicates, they are  
               currently working to remove social security numbers from  
               the California Special Education Management Information  
               System (CASEMIS), and are in the process of incorporating  
               the data for all students into the CALPADs. The CDE further  
               notes they have already assigned unique student identifiers  
               to all students, including those receiving special  
               education.  While the CDE is already complying with the  








          AB 2097 (Melendez)                                      Page 6  
          of ?
          
          
               provisions of this bill, the bill also prohibits schools  
               from collecting or soliciting social security numbers or  
               the last four digits of social security numbers.

          4)   Fiscal impact.  According to the Assembly Appropriations  
               Committee, this bill would impose no administrative costs  
               to the CDE to remove social security numbers from their  
               databases and provide new pupil identifiers as these  
               activities are currently underway.
            
          SUPPORT
          
          California State PTA
          California Teachers Association
          The Arc and United Cerebral Palsy California Collaboration

            OPPOSITION
           
           None received.

                                      -- END --