BILL ANALYSIS Ó
AB 2103
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Date of Hearing: April 13, 2016
ASSEMBLY COMMITTEE ON EDUCATION
Patrick O'Donnell, Chair
AB 2103
(Burke) - As Amended March 18, 2016
[This bill has been double referred to the Assembly Judiciary
Committee and, if passed, will be heard by that committee as it
relates to issues under its jurisdiction.]
SUBJECT: Pupil records: court orders: disclosure exceptions
SUMMARY: Provides that, when information concerning a pupil is
disclosed pursuant to a subpoena, the parent or guardian of the
pupil shall not be notified if so ordered by the court or
issuing agency. Specifically, this bill:
1)Finds and declares that:
a) The state has a compelling interest in protecting the
welfare of its children;
b) Under Section 13 of Article V of the California
Constitution, the Attorney General has the duty and broad
authority to ensure that the laws of the state are
uniformly and adequately enforced for the protection of
public rights and interests;
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c) The Attorney General is the chief law officer of the
state and head of the Department of Justice;
d) The Attorney General possesses parens patriae standing
to bring legal actions for violations of any laws that
affect the health and welfare of the state's citizens;
e) Absent a legislative restriction, the Attorney General
may file any civil action or proceeding directly involving
the rights and interests of the state, or which is deemed
necessary for the enforcement of the laws of the state, the
preservation of order, and the protection of public rights
and interests;
f) The Bureau of Children's Justice is a section within the
Department of Justice, created to ensure that state laws
and regulations enacted to protect children are
consistently and effectively enforced;
g) The mission of the Bureau of Children's Justice is to
protect the rights of children and focus the attention and
resources of law enforcement and policymakers on the
importance of safeguarding every child so they can meet
their full potential;
h) The Bureau of Children's Justice utilizes the Department
of Justice's criminal and civil law enforcement powers to
oversee and monitor laws that affect children, including
education, civil rights, consumer protection, nonprofit
charities, child welfare, privacy and identity fraud, and
fraud;
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i) The Attorney General's jurisdiction to enforce state
laws relating to children is concurrent to and independent
from the jurisdiction of other state agencies that oversee
and monitor laws that affect the health, education, and
welfare of the state's children;
j) The Family Educational Rights and Privacy Act (20 U.S.C.
Sec. 1232g) is a federal law that protects the privacy of
pupil educational records;
aa) The United States Department of Education has
implemented regulations pursuant to the federal Family
Educational Rights and Privacy Act. Section 99.31(a)(9) of
Title 34 of the Code of Federal Regulations sets forth
conditions when disclosure to comply with a judicial order
or lawfully issued subpoena is required but does not
require an educational agency or institution to make a
reasonable effort to notify the parent or eligible pupil of
the order or subpoena in advance of compliance where the
disclosure is in compliance with (A) 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 or (B) 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.;
bb) Article 5 (commencing with Section 49073) of Chapter 6.5
of Part 27 of Division 4 of Title 2 of the Education Code
provides for the privacy protection of pupil records;
cc) Section 49077 of the Education Code sets forth
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conditions for disclosure of pupil information in
compliance with a court order or lawfully issued subpoena
and requires a school district to make a reasonable effort
to notify the parent or legal guardian and the pupil in
advance of compliance with a lawfully issued subpoena and,
in the case of compliance with a court order, if lawfully
possible within the requirements of the order; and
dd) The conditions for disclosure of pupil information in
compliance with a lawfully issued subpoena set forth in the
Education Code are not consistent with the federal Family
Educational Rights and Privacy Act and its implementing
regulations.
2)States the intent of the Legislature to amend California state
law to be consistent with federal law and regulations and with
the above findings and declarations.
3)Expands from "school districts" to "educational agencies or
institutions" the entities that must make a reasonable effort
to notify parents or guardians when disclosing information
concerning a pupil pursuant to a court order or subpoena.
4)Provides an exception to the requirement to make a reasonable
effort to notify parents or guardians in the following cases:
a) A subpoena issued by a grand jury 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; or
b) Any other subpoena issued for a law enforcement purpose
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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.
5)Provides that no reimbursement is required by this act
pursuant to Section 6 of Article XIIIB of the California
Constitution because this act implements a federal law or
regulation and results only in costs mandated by the federal
government, within the meaning of Section 17556 of the
Government Code.
EXISTING LAW: Requires school districts to make a reasonable
effort to notify the parent or guardian and the pupil in advance
of compliance with a subpoena or court order to provide
information concerning a pupil. Specifies that, in the case of
a court order, this requirement applies only if it is lawfully
possible within the requirements of the order.
FISCAL EFFECT: State-mandated local program
COMMENTS: Information contained in pupil records is protected
by state and federal law. Federal protections are contained in
the Federal Educational Rights and Privacy Act (FERPA), and
apply to any educational institution that receives federal
funding. State law generally complies with FERPA, although in
some cases state law intentionally provides a higher degree of
protection and confidentiality.
In general, school districts may not disclose personally
identifying information in a pupil's record without the prior
written consent of the pupil's parent or guardian. There are
certain exceptions to this prohibition, including if the
disclosure is to comply with a court order or subpoena.
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Although prior consent is not required in these cases, FERPA and
state law both require the school district to make "a reasonable
effort" to notify the parent or guardian and the pupil in
advance of compliance with the order or subpoena. Federal
regulations state that this provision is to allow the parent and
student to seek protective action, if needed.
FERPA provides three exceptions and state law provides one
exception to the requirement to notify. This bill adds two more
exceptions to state law. The table on the next page compares
these exceptions.
Reason for the bill. This bill is introduced on behalf of the
California Department of Justice (DOJ), which created the Bureau
of Children's Justice (BCJ) last year. The BCJ conducts
investigations relating to potential violations of civil or
constitutional rights of children by entities, including school
districts and schools. The author's office argues that
requiring the DOJ to provide notice to parents or pupils when
issuing a subpoena as part of an investigation would hamper the
ability of the DOJ to protect the rights of pupils.
Specifically, DOJ states, "Requiring disclosure of our subpoenas
to third parties before BCJ is ready to publicly disclose the
existence of an investigation - especially to potentially
hundreds of parents or students - jeopardizes the neutrality and
possibly the confidentiality of our investigations. For
instance, if BCJ was required to provide notification each time
it issues a subpoena, it could immediately place the appearance
of guilt on the school or district before BCJ is able to
ascertain whether violations of law are occurring."
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Exceptions to the Requirement to Notify Parent/Guardians/Pupils
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| FERPA |State Law (EC 49044) | AB 2103 |
| | | |
| | | |
|---------------------+---------------------+---------------------|
|1. The order to |1. The requirement |Existing law, plus: |
|disclose is from a |to notify applies | |
|federal grand jury |only if lawfully | |
|and the court has |possible within the |1. A subpoena issued |
|ordered that the |requirements of a |by a grand jury and |
|existence or the |court order. |the court has |
|contents of the | |ordered that the |
|subpoena or the | |existence or the |
|information | |contents of the |
|furnished in | |subpoena or the |
|response to the | |information |
|subpoena not be | |furnished in |
|disclosed. | |response to the |
| | |subpoena not be |
| | |disclosed. |
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|2. The order to | | |
|disclose is from any | | |
|other subpoena | |2. Any other |
|issued for a law | |subpoena issued for |
|enforcement purpose | |a law enforcement |
|and the court or | |purpose and the |
|other issuing agency | |court or other |
|has ordered that the | |issuing agency has |
|existence or the | |ordered that the |
|content of the | |existence or the |
|subpoena or the | |contents of the |
|information | |subpoena or the |
|furnished in | |information |
|response to the | |furnished in |
|subpoena not be | |response to the |
|disclosed; or | |subpoena not be |
| | |disclosed. |
| | | |
|3. The order to | | |
|disclose is from an | | |
|ex parte court order | | |
|obtained by the U. | | |
|S. Attorney General | | |
|concerning | | |
|investigations or | | |
|prosecutions of | | |
|specified federal | | |
|offenses, including | | |
|acts of domestic or | | |
|international | | |
|terrorism. | | |
| | | |
| | | |
| | | |
| | | |
| | | |
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DOJ offers the following examples of when the requirement to
notify could jeopardize and investigation:
Mandatory reporters employed in a school district
allegedly systematically fail to report multiple incidents
of child abuse in violation of California's Child Abuse and
Neglect Reporting Act (CANRA). An investigation of the
allegations requires obtaining certain student records to
determine whether the district has a system-wide practice
of failing to comply with CANRA. A requirement that the
parent/guardian receive advance notification could impede
the confidentiality of the investigation, lead parents to
prejudge liability by the employees, or potentially place
complainants at risk of retaliation or harm.
Teachers employed by a school allegedly physically abuse
a student while the student is in class and an
investigation is conducted to determine whether there is a
pattern of such practices. Any information that personally
identifies the student victim, which is vital to any
ability to investigate the harm that occurred, cannot
currently be requested or obtained without violating the
confidentiality of the investigation.
Staff notes that FERPA and corresponding state law apply only to
information in pupil records. Information obtained from any
other source, such as law enforcement, other private and public
agencies (such as public welfare and child protection agencies),
health care providers, the pupils and families themselves, or
even an individual teacher or administrator, does not fall under
the protection of FERPA and does not require parent
notification.
REGISTERED SUPPORT / OPPOSITION:
AB 2103
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Support
None received
Opposition
None received
Analysis Prepared by:Rick Pratt / ED. / (916) 319-2087