BILL ANALYSIS �
AB 143
Page 1
Date of Hearing: April 12, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 143 (Fuentes) - As Amended: April 6, 2011
PROPOSED CONSENT
SUBJECT : Pupil Records: Privacy Rights
KEY ISSUE : Should a minor's counsel of record have access to
the minor's educational records for the purposes of conducting a
criminal or probation investigation or an investigation in
regards to declaring a person a ward of the court?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill seeks to provide a minor's counsel - usually but not
always court-appointed counsel - with the same access to the
minor's educational records as district attorneys and probation
officers currently enjoy under existing law, so long as the
disclosure relates to a legitimate educational interest and is
used only for the purposes of conducting a criminal or probation
violation investigation or parole or is related to declaring the
minor a ward of the court. In addition this bill, consistent
with federal law, would require the officials or authorities to
whom records are disclosed to certify in writing that the
information will not be disclosed to any other person without
the prior written consent of the parent. Under existing law,
district attorneys and probation officers, for specified
purposes, may obtain a minor's educational records without
needing to get prior parental consent. However, the minor's
counsel can only access those records by obtaining parental
consent, a subpoena, or a court order. According to the author
and supporters of this bill, these requirements impose
inefficient and unnecessary obstacles that greatly hamper the
ability of minor's counsel to effectively serve the minor's best
interest. The author persuasively argues that in the juvenile
court context the minor's counsel, as an officer of the court,
should have the same access to educational records as the other
key players in the juvenile justice system. As discussed in the
analysis below, recent technical and clarifying amendments
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addressed the remaining concerns of various stakeholders. The
bill passed out of the Assembly Education Committee on consent.
There is no known opposition to this bill.
SUMMARY : Adds to the list of persons who may obtain a pupil's
school records, for specified purposes, a minor's counsel of
record, and requires persons in receipt of such records to
certify that the information shall not be disclosed to another
person, except as specified. Specifically, this bill :
1)Provides that a minor's counsel of record may access pupil
records relevant to legitimate educational interests of the
minor 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.
2)Specifies that for purposes of the above provision that a
district attorney, probation officer, and minor's counsel of
record are deemed a "local official" for purposes of
regulations promulgated under the Family Educational Privacy
Rights Act.
3)Requires officials and authorities to whom pupil records are
disclosed to certify in writing to the school district that
the information shall not be disclosed to another party,
except as provided by federal and state law, without the prior
written consent of the parent of the pupil or other person
identified as the holder of the pupil's educational rights.
4)Specifies that pupil records obtained pursuant to the
provisions of this bill shall be subject to existing
evidentiary rules of the juvenile court, as specified.
EXISTING LAW :
1)Prohibits a school district from permitting access to pupil
records to a person without parental consent or under judicial
order except to certain persons for specified purposes,
including to a probation officer or district attorney 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.
(Education Code Section 49076.)
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2)Authorizes a school district to permit access to pupil records
to a person who has obtained from the pupil's parent a written
consent specifying the records to be released and identifying
the party or class to whom the records may be released.
Requires the recipient of the records to be notified that
transmission of the information to others without the written
consent of the parent is prohibited. (Education Code Section
49075(a).)
1)Provides under the federal Family Educational Rights and
Privacy Act (FERPA) that no federal funds shall be made
available to any educational agency or institution which has a
policy or practice of permitting the release of a student's
educational records to any individual, agency, or organization
without the written consent of the student's parents. Exempts
from the general parental consent requirement certain kinds of
disclosures, including disclosures to state and local
authorities or officials 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. (20 USC Section 1232g
(b); 34 CFR Sections 99.31 and 99.38.)
COMMENTS : This bill seeks to give a minor's counsel - usually
but not always court-appointed counsel - the same access to the
minor's educational records as district attorneys and probation
officers currently enjoy under existing law, so long as the
disclosure relates to a legitimate educational interest and is
used only for the purposes of conducting a criminal
investigation or parole violation or is related to declaring the
minor a ward of the court. In addition this bill, consistent
with federal law, would require the officials or authorities to
whom records are disclosed to certify in writing that the
information will not be disclosed to any other person without
the prior written consent of the parent. Under existing law,
district attorneys and probation officers may obtain access to
records, without parental consent, for the limited purposes of
conducting a criminal investigation, a probation violation
investigation, or an investigation in regards to declaring a
person a ward of the court. However, the minor's counsel of
record can only access those records by obtaining parental
consent, a subpoena, or a court order. The author and
supporters of this bill contend that there is no reason the
minor's counsel - as an officer of the court who in the great
majority of cases is appointed by the juvenile court - should
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not have the same access to educational records, since all three
persons are similarly obligated to serve the best interest of
the child within the juvenile justice system.
Recent Amendments Appear to Address FERPA Concerns . The federal
Family Educational Rights and Privacy Act (FERPA) permits states
to adopt statutes for authorizing access to educational records,
and it makes funding to the states contingent upon the state
statute's conformity to FERPA's general regulations. FERPA
regulations generally require that student records may not be
accessed by any person unless that person obtains parental
consent. However, both federal and state laws recognize that
the unique issues that arise in juvenile court make it
impractical, inadvisable, and in some cases detrimental to the
welfare of the child to seek prior parental consent. As such,
both federal and state laws make certain exceptions to the
general rule requiring parental consent. Specifically federal
law provides limited access to educational records in juvenile
justice matters to state and local "officials or authorities"
where the disclosure serves a legitimate educational purpose and
concerns the juvenile justice system's ability to effectively
serve the minor student. In such cases federal requires that
the officials and authorities to whom it is released certify in
writing that the information is not disclosed to any other party
without the prior written consent of the parent. (20 USC
Section 1232g (b)(1); 34 CFR 99.31 and 99.38.) However, federal
regulations neither define "official and authorities" nor say
exactly what matters concerning juvenile justice would qualify
as legitimate purposes. As such, recent amendments specify that
for purposes of the limited circumstances addressed by this
bill, a minor's counsel of record, as an officer of the court,
is deemed a "local official" in the same manner that existing
state law deems the district attorney and probation officer a
"local official."
In short, federal regulations necessarily leave many details to
the state, so long as they are consistent with the overall
policy objectives of FERPA. The overall objective of these
particular FERPA provisions is to ensure the juvenile justice
system's ability to effectively serve the minor; extending to
the minor's counsel the same access now enjoyed by district
attorneys seems to be fully consistent with that overall
objective. Similarly, the provision in the bill requiring that
local officials to whom the records are disclosed certify in
writing that the information in the records will not be
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disclosed to anyone else without parental consent is drawn
directly from federal language.
ARGUMENTS IN SUPPORT : The California Public Defenders
Association (CPDA) supports this bill because it will clarify
that minor's counsel may access student records for relevant and
legitimate purposes. Existing law, CPDA points out, permits
access to records without parental consent to "only two of the
three necessary juvenile court officers in juvenile proceedings:
the district attorney and the probation officer." Only the
minor's counsel is excluded. As such, minor's counsel must
either obtain parental consent (which is not always possible or
advisable) or obtain a subpoena or court order, which burdens
both the counsel and the courts.
REGISTERED SUPPORT / OPPOSITION :
Support
California Public Defenders Association
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334