BILL ANALYSIS �
AB 143
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Date of Hearing: March 30, 2011
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 143 (Fuentes) - As Introduced: January 13, 2011
�This bill is double referred to the Assembly Judiciary
Committee and will be heard as it relates to the issues under
its jurisdiction]
SUBJECT : Pupil records: privacy rights
SUMMARY : Amends California Education Code with respect to
legal counsel's access to pupil records and with respect to
requirements relating to the confidentiality of pupil records.
Specifically, this bill :
1)Requires specified officials and authorities with access to a
pupil's records to certify in writing to the school district
holding those records that the pupil information will not be
disclosed to another party, except as provided under state
law, without prior written consent of the pupil's parent or
the holder of the pupil's educational rights.
2)Adds "minor's counsel" to those individuals, including a
probation officer or district attorney, who may access pupil
records, for relevant and legitimate educational interests,
while conducting an investigation related to a crime, a
declaration of a person as a ward of the court, or a violation
of a condition of probation.
EXISTING LAW protects, under the federal Family Educational
Rights and Privacy Act (FERPA) (20 U.S.C. � 1232g; 34 CFR Part
99) and state law, the privacy of pupil education records by
requiring written permission from the parent or eligible
student, with specified exceptions, in order for a school
district to release any information from a student's education
record.
FISCAL EFFECT : This bill is keyed non-fiscal.
COMMENTS :
FERPA protects the privacy of student education records, and
applies to all schools that receive funds under programs
administered by the U.S. Department of Education. FERPA gives
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parents certain rights with respect to their children's
education records, and provides for the transfer of these rights
to the student when he or she reaches the age of 18 or attends a
school beyond the high school level. Students to whom the rights
have transferred are termed "eligible students." Under FERPA
parents or eligible students have the right to:
1)Inspect and review the pupil's education records maintained by
the school.
2)Request that a school correct records which they believe to be
inaccurate or misleading.
3)Attend a formal hearing, if the school decides not to amend an
inaccurate or misleading record.
4)Place a statement with the record setting forth his or her
view about the contested information, if the school still
decides not to amend the record after a formal hearing.
Generally, schools must have written permission from the parent
or eligible student in order to release any information from a
pupil's record; however, FERPA provides limited exceptions to
this requirement (and thus allows schools to disclose records
without consent) for specific requesters with legitimate
educational interests, including school officials, other schools
to which a student is transferring, specified officials for
audit or evaluation purposes, appropriate parties in connection
with the pupil's financial aid, entities conducting certain
studies for or on behalf of the school, accrediting
organizations, requesters in compliance with a judicial order or
lawfully issued subpoena, appropriate officials in cases of
health and safety emergencies, and state and local authorities
within the juvenile justice system and pursuant to specific
State law.
State law further clarifies these exceptions, and includes a
provision that allows any probation officer or district attorney
access, without written consent from the parent or eligible
student, to pupil records relevant to the requester's legitimate
educational interest, for the purposes of conducting a criminal
investigation, or an investigation in regards to declaring a
person a ward of the court or involving a violation of a
condition of probation.
According to the author, this exception "limits access to
education records without parent consent to only two of the
three necessary juvenile court officers in juvenile proceedings
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- the district attorney and the probation officer. Minor's
counsel is not provided equal access to education records."
Given that minor's counsel is not covered under this direct
exception, counsel must rely on one of three other methods to
gain access to the pupil records of his or her client.
1) Gain access through the discovery process. Discovery,
however, may not be required in all circumstances where a
minor's counsel might have a legitimate educational
interest in examining the pupil's records; in addition,
discovery would only provide access to pupil records to the
extent that the district attorney or probation officer
accessed those records themselves.
2) Acquire written consent of the parent to allow access.
Parents of minors in the juvenile justice system may not be
available or willing to provide the written consent
necessary for counsel to access a pupil's records, even if
it would be in the best interest of the minor. Note that
this bill focuses on minor's counsel, since an eligible
pupil (over the age of 18, attending a school beyond high
school, or an emancipated minor) would have the legal
standing to provide their own written consent to counsel;
in the case of a minor, however, the written consent, with
few exceptions, would have to be provided by the parent.
3) Secure access under a court order or lawfully issued
subpoena. This approach generally does not result in
timely access, may create the need for additional (and thus
delayed) court proceedings, and may place additional
workload on the school district holding the pupil records.
Each of these three methods of gaining access to pupil records
is more limiting than the direct access created by the exception
provided for a district attorney and probation officer, and
places a greater burden in time and costs on minor's counsel.
Thus current law may be seen as creating a non-level playing
field that works against the interests of the minor; the author
argues that this situation leads to an inequity in the juvenile
justice system's ability to ensure that pupils (especially
pupils of color and pupils with special needs) receive the
educational services that they need. This bill resolves this
issue by allowing minor's counsel the same direct access as is
provided to a probation officer and district attorney.
The policy argument for the change proposed in this bill is
compelling in that it is intended to protect the minor pupil,
ensure that the pupil is effectively served by the juvenile
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justice system, and ensure that the pupil receives appropriate
educational services; however, the primary purpose of both state
and federal statute and regulations in this area is to protect
the confidentiality of pupil information. As noted above, under
FERPA, requesters with legitimate educational interests may gain
access to a minor's pupil records without parental permission
only under specified exceptions. The relevant exception in this
case appears to be found in 20 U.S.C. 1232g(b)(1)(E)(ii), which
states that an exception may be granted, by state statute
enacted after November 19, 1974, to "State and local officials
or authorities to whom such information is specifically allowed
to be reported or disclosed?" by state statute, if "(I) the
allowed reporting or disclosure concerns the juvenile justice
system and such system's ability to effectively serve, prior to
adjudication, the student whose records are released; and (II)
the officials and authorities to whom such information is
disclosed certify in writing to the educational agency or
institution that the information will not be disclosed to any
other party except as provided under State law without the prior
written consent of the parent of the student." The technical
question posed by this bill is whether the addition of minor's
counsel to state statute conforms to this exception under FERPA.
This bill is double referred to the Assembly Committee on the
Judiciary, where this question may be more appropriately
explored.
This bill also proposes to reinforce the existing restriction in
state statute on secondary disclosures, or re-disclosure, of
confidential information in pupil records by requiring officials
and authorities, who access pupil records under the exceptions
noted above, to provide written certification to the school
district holding the records that the information accessed will
not be re-disclosed to another party, except as provided under
state law or without written parental consent. This proposal
clearly conforms to the requirements of FERPA and is also
consistent with the intent of state law concerning the
confidentiality of pupil record information.
Committee amendments: Committee staff recommends the following
amendments:
1)This bill proposes to require that specified officials and
authorities with access to a pupil's records certify in
writing to the school district holding those records that the
pupil information will not be disclosed to another party
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without prior written consent of the pupil's parent or the
holder of the pupil's educational rights, "except as provided
under state law." This language should be amended such that
the exception to this requirement reads, 'except as provided
under FERPA and state law.' This change conforms to related
exceptions currently provided for in other sections of the
Education Code.
2)The new requirement in 1) above is proposed to be included as
a new subdivision (b) in Education Code section 49075;
however, this requirement is more germane to the detailed
language and requirements that currently exist in Education
Code section 49076. A technical amendment moving this new
requirement to section 49076 is in order.
Previous legislation: AB 261 (Salas), vetoed in 2009, amends
the California Education Code to conform with the FERPA
requirements relating to the confidentiality of pupil records.
AB 2630 (Salas), vetoed in 2008, was substantially similar to AB
261 in 2009. AB 1663 (Evans), Chapter 454, Statutes of 2007,
made various revisions to state special education statutes to
bring them in conformity with the 2004 reauthorization of IDEA
and implementing federal regulations that became effective in
2006. Earlier versions of this bill also included language
dealing with FERPA confidentiality issues; that language was
deleted from the bill on the Senate Floor after comments from
the Department of Finance that these issues were substantive
enough to require separate legislation.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, county and Municipal Employees,
AFL-CIO
California Federation of Teachers
Kern county Superintendent of Schools
Sacramento County District Attorney's Office
Opposition
None on file
Analysis Prepared by : Gerald Shelton / ED. / (916) 319-2087
AB 143
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