BILL ANALYSIS
AB 261
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Date of Hearing: March 31, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 261 (Salas) - As Introduced: February 11, 2009
SUBJECT : Pupil Records: Privacy Rights
KEY ISSUE : Should state educational law relating to access to
student records be amended in order to bring it into conformity
with federal law, and thereby ensure that the state continues to
obtain its share of federal special education funds?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
An identical version of this bill, AB 2630, was approved by the
Committee last year by a vote of 10-0. This bill, which is
sponsored by the State Superintendent of Public Instruction,
amends the California Education Code provisions relating to
access to student records so as to conform to the federal
Family Education Rights and Privacy Act (FERPA). As a condition
for receipt of federal funding, federal law generally prohibits
access to pupil records without parental consent or a judicial
order, subject to certain exemptions. Beginning in 2003, and
every year thereafter, the United States Department of Education
(USDOE) has warned the California Department of Education that
the California statute has not been amended to conform to
changes in federal law. Specifically, USDOE warned that failure
to amend the existing statute would jeopardize continued funding
for special education, which currently amounts to more than one
billion dollars annually. The bill is identical to last year's
AB 2630 which was negotiated by several interested parties to
ensure both conformity to federal law and protection of privacy
interest, especially as to qualified exemptions related to
truancy mediation and juvenile adjudication. AB 2630 passed out
of this Committee last year on consent. The final version of AB
2630 passed off the Senate floor by an overwhelmingly
bi-partisan 37 to 1 vote, and the Assembly concurred without a
single dissenting vote. The Governor vetoed the bill on the
grounds that it would create a reimbursable state mandate, even
though Legislative Counsel had keyed the bill non-fiscal and
found that it did not create a state-mandated local program.
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Moreover, even if the bill does create a state-mandated local
program - which according to Legislative Counsel it does not - a
mandate that is enacted to comply with federal law is not
reimbursable. Legislative Counsel has again concluded that AB
261, like last year's AB 2630, does not create a state-mandated
local program. Although the Department of Finance disputes the
Legislative Counsel designation, it has not taken a formal
position on the bill. This bill passed out of the Education
Committee last week on a bipartisan, unanimous 10-0 vote.
SUMMARY : Amends California Education Code relating to access to
pupil records in order to conform to the federal Family
Education Rights and Privacy Act (FERPA). Specifically, this
bill :
1)Provides, generally, that a school district is not authorized
to permit access to pupil records to a person without written
parental consent or under judicial order, except under
specified conditions, and to specified officials, as is
permitted by Part 99 of the Title 34 of the Code of Federal
Regulations.
2)Clarifies that a district attorney's office that is
participating in a truancy mediation program, as defined, may
have access to pupil records under specified conditions and so
long as the disclosure of records is permitted pursuant to,
and consistent with, Section 99.38 of Title 34 of the Code of
Federal Regulations as that section exists on January 1, 2009.
3)Clarifies that a probation officer or district attorney's
office may have access to pupil records for purposes of
conducting an investigation for juvenile adjudication,
declaring a person a ward of the court, or investigating a
condition of probation, so long as the records are relevant to
the legitimate educational interests of the pupil and the
disclosure of those records is permitted pursuant to, and
consistent with, Section 99.38 of Title 34 of the Code of
Federal Regulations as that section exists on January 1, 2009.
4)Clarifies that the judge or probation officer, for the
purposes of conducting a truancy mediation or presenting
evidence in a truancy petition, as defined, may have access to
pupil records, so long as the disclosure of those records is
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permitted pursuant to, and consistent with, Section 99.38 of
Title 34 of the Code of Federal Regulations as that section
exists on January 1, 2009.
5)Amends the existing exemption that gives county election
officials access to information contained in student records
for the limited purpose of identifying students eligible to
register to vote, so as to give the pupil's parent, or the
pupil if 18 years or age or older, the opportunity to opt out
of this voter registration activity.
6)Amends existing exemptions that allow limited data sharing
between schools, for purposes of transfer, or between schools,
a county office of education, or the school superintendent,
for purposes of maintaining a data information system, so long
as the record and data sharing is for a legitimate educational
purpose and conforms to disclosure requirements in state and
federal law.
EXISTING LAW prohibits a school district from permitting access
to pupil records to any person without written parental consent
or a judicial order, subject to certain exemptions. (California
Education Code Sections 49076 and 49076.5.)
COMMENTS : The federal Family Education Rights and Privacy Act
(FERPA) protects the privacy of student records by prohibiting a
person from having access to pupil records without written
parental consent or under a court order, subject to narrow
exemptions. FERPA applies to all schools that receive funds
from the United States Department of Education (USDOE).
Pursuant to this general requirement, the 1997 Individuals with
Disabilities Education Act (IDEA) required all states that
received IDEA grants to submit copies of state laws, policies,
and procedures in order to prove compliance with federal
requirements, including requirements that protected student
records. After reviewing this material, the federal Family
Policy Compliance Office determined that California statutes had
not been amended to bring the state law into compliance with
subsequent changes in federal law. USDOE has repeatedly warned
the California Department of Education that IDEA grants may not
be continued if California statutes are not amended to conform
to federal law. This bill is sponsored by the State
Superintendent of Public Instruction, Jack O'Connell, who
contends that California is in danger of losing at least $1.13
billion in IDEA grants that provide critical funding to special
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education in California.
In addition, the recently enacted American Recovery and
Reinvestment Act (ARRA) could provide an additional $1.3 billion
dollars to California local education agencies. The USDOE is
currently in the process of developing ARRA guidelines. It is
not yet clear how, or if, ARRA funds will also be tied to FERPA
compliance; however, it is certainly possible, as noted in the
March 18 analysis of the Assembly Education Committee, that the
same sanction that USDOE applies to IDEA grants will also be
applied to ARRA funds once the guidelines are completed.
Governor's Veto of AB 2630/ State-Mandated Cost Issue . As noted
above, this bill is identical to the author's AB 2630 of last
year. AB 2630 was negotiated by several interested parties to
ensure both conformity to federal law and protection of student
and family privacy interests. AB 2630 recognized, as does both
existing state and federal law, that there are certain
circumstances, and certain officials, who may need access to
pupil records, or portions thereof, without first obtaining
parental consent or a court order. For example, schools within
a district must sometimes exchange records in the event of a
student transfer. Probation officers, district attorney's
offices, and judges involved in truancy mediation programs or
juvenile justice investigations may need to document student
attendance records. This bill clarifies that these already
existing exemptions must be narrowly tailored to the specific
purposes that justify the exemptions and, most importantly, that
any disclosure of records under these exemptions must still
conform to federal law.
Legislative Counsel keyed AB 2630 non-fiscal and expressly
stated that it did not impose a state mandate on local
government. Moreover, the California Constitution only requires
the state to reimburse local agencies and school districts for
certain costs mandated by the state. It does not require
reimbursement if the state law is enacted to comply with a
federal requirement. (California Constitution, Section 6 of
Article 13 B. See also County of L.A. v. Commission on State
Mandates (1995) 32 Cal. App. 4th 805, concluding, on the basis
of ample prior case law, that a state mandate provision does not
apply to state legislation enacted pursuant to a federal
requirement.) Nonetheless, the Governor vetoed AB 2630 on the
grounds that would create a reimbursable state mandate.
Specifically, the Governor's terse veto message stated:
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While the stated intent of this bill is purported to
conform state special education law to changes to the
federal Individuals with Disabilities Education Act,
its provisions appear to expand beyond federal
requirement, and therefore could expose the State to
significant reimbursable state mandate costs.
Department of Finance Analysis of AB 2630 . Although the
Governor's veto message does not identify which provisions
expand federal requirements or how they would expose the state
to "significant reimbursable state mandate costs," the
Department of Finance (DOF) analysis of AB 2630 claims that two
provisions exceed the requirements of federal law and could cost
local education agencies "millions of dollars" that the state
would need to reimburse, since the requirements allegedly go
beyond federal requirements. In particular, the DOF analysis
claims that:
Section 2 of this bill amends Education Code Section
49076.5 to require designated peace officers to show
prior written consent from one parent, or show that
they have obtained a lawfully issued subpoena or a
court order in order to obtain a student's
information. Conversely, federal law is not explicitly
this prescriptive. [Emphasis added.]
There are two objections that can be made to the DOF analysis.
First, DOF apparently fails to recognize that while no specific
provision in the federal regulations exactly tracks the existing
state law provision relating to "designated peace officers" -
the Code of Federal Regulations does not use that term - the new
language in Section 2 is effectively mandated by sections 99.30
and 99.31 of Title 34 of the Code of Federal Regulations.
Section 99.30 sets out the general rule that no information
shall be disclosed without written parental consent, while
Section 99.31 sets out the conditions under which prior consent
is not required, so long as other specified steps are taken. AB
261 mirrors the exact language of the federal regulations where
federal regulations speak directly to a specific exemption, as
in the case of records obtained for purposes of truancy
mediation or juvenile justice adjudication. Where the federal
regulations do not spell out a specific exemption, however,
Section 99.31 (9)(i) mandates that parental consent can only be
bypassed in order to "comply with a judicial order or a lawfully
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issued subpoena."
Under the existing California statute, a school must disclose
records to a "designated peace officer," upon his or her
request, "when a proper police purpose exists for the use of
that information" (Education Code Section 49076.5 (a)). It must
be stressed that this requirement is in existing law: schools
must already disclose records to a peace officer if it is for a
"proper police purpose," as defined (Section 49076.5 (b)(1)).
However, this existing requirement is not sufficient to comply
with federal law. Except for purposes expressly provided for
(as in truancy mediation), the minimum federal requirement for
disclosing student records without parental consent is, as
noted, to "comply with a judicial order or a lawfully issued
subpoena." (34 CFR Section 99.31 (9)(i).) Section 2 of AB 261
merely provides that records cannot be disclosed to a designated
peace officer unless he or she has met one of the federal
requirements: that is, obtain prior written consent of a parent
(the default requirement in CFR Section 99.30); OR provide
information indicating that there is an emergency in which the
information is necessary to protect the health or safety of the
pupil (as required by CFR Section 99.31 (10)); OR that the peace
officer has obtained a lawfully issued court order or subpoena
(as required by CFR Section 99.31(9)).
In short, the DOF analysis, not finding any provision in the
Code of Federal Regulations that matches the express language in
Section 2 of this bill, apparently concludes that the bill
differs from, and therefore goes beyond, the federal
requirements. But when CFR Sections 99.30 and 99.31 are read in
their entirety, it appears that the additional language added to
existing Education Code Section 49076.5 is designed to expressly
respond to the various ways in which federal law permits records
to be disclosed without parental consent.
Second, the DOF analysis claims that the added language in
Section 2 will impose new costs on local school districts.
However, existing law already requires a school to disclose
records to a designated peace officer. The only thing that the
new language in Section 2 does is require that the peace
officer, in order to comply with express federal requirements of
Section 99.30 and 99.31, obtain parental consent, OR demonstrate
a public health or safety concern, OR obtain a court order or
subpoena. This does not impose any new requirement on the
school district. It does impose a new requirement on designated
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peace officers, but this is because the existing state law
requirement falls short of federal requirements. Thus, whatever
minimal costs these may impose on the peace officers - not on
the school - it is clearly required by federal law and is
therefore not a reimbursable state mandate.
The DOF analysis also asserts that amendments to Section 49076
relating to the release of information to county election
officials (page 4 lines 30-36 of the bill in print) may impose a
requirement that goes beyond federal law. Existing law permits
a school district to disclose information from a student record
to county elections officials if it is for the purpose of
identifying pupils eligible to register to vote and for
conducting programs to offer pupils an opportunity to vote.
Again, it is important to stress that this is existing law and
not a new mandate. However, AB 261 adds a requirement that
would allow parents, or the pupil if he or she is 18 years of
age or older, to opt out of participation in this voter
registration activity. The DOF analysis points out, quite
correctly, that the federal law says nothing about voter
registration activity. But the fact that federal law says
nothing about this is precisely the point! Because federal law
says nothing about county election officials or voter
registration programs, then county elections officials, like
anyone else, can only obtain pupil records by obtaining prior
parental consent. This federally required consent is
effectively achieved by giving the parent, or an adult student,
the opportunity to opt out.
In sum , while the DOF analysis usefully elaborates on the
Governor's terse veto message, the arguments do not appear
persuasive enough to overturn the sound judgment of the
Legislative Counsel. It is not clear that AB 261 imposes any
new mandates on local school districts, as the DOF analysis
claims. Any new costs imposed on other entities appear to be
required by federal law, and are therefore not reimbursable.
Finally, even if one were to accept the DOF's undocumented
assertion that this bill would impose costs of "millions of
dollars" on local school agencies, those unspecified "millions"
are still less than the $1.13 billion the state could lose in
IDEA grants and as much as $1.3 billion that the state could
lose if the USDOE applies the same logic to ARRA funds.
REGISTERED SUPPORT / OPPOSITION :
AB 261
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Support
Jack O'Connell, State Superintendent of Public Instruction
(sponsor)
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334