BILL NUMBER: AB 733 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 15, 2012
AMENDED IN SENATE JUNE 16, 2011
AMENDED IN ASSEMBLY MARCH 25, 2011
INTRODUCED BY Assembly Member Ma
FEBRUARY 17, 2011
An act to amend Sections 49076 and 49076.5 of the Education Code,
relating to pupil records.
LEGISLATIVE COUNSEL'S DIGEST
AB 733, as amended, Ma. Pupil records: privacy rights.
Existing law prohibits a school district from permitting access to
pupil records to any person without written parental consent or
judicial order, except as provided.
This bill would make various changes to these pupil record
provisions to conform them to federal law.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 49076 of the Education Code
is amended to read:
49076. A school district shall not permit access to pupil records
to a person without written parental consent or unless pursuant to
judicial order except as set forth in this section and as permitted
by Part 99 (commencing with Section 99.1) of Title 34 of the Code of
Federal Regulations.
(a) Access to those particular records relevant to the legitimate
educational interests of the requester shall be permitted to the
following:
(1) School officials and employees of the district, members of a
school attendance review board appointed pursuant to Section 48321,
and a volunteer aide, 18 years of age or older, who has been
investigated, selected, and trained by a school attendance review
board for the purpose of providing followup services to pupils
referred to the school attendance review board, provided that the
person has a legitimate educational interest to inspect a record.
(2) Officials and employees of other public schools or school
systems, including local, county, or state correctional facilities
where educational programs leading to high school graduation are
provided or where the pupil intends to or is directed to enroll,
subject to the rights of parents as provided in Section 49068.
(3) Authorized representatives of the Comptroller General of the
United States, the Secretary of Education, and state education
officials, or their respective designees, or the United States Office
of Civil Rights, where the information is necessary to audit or
evaluate a state or federally supported education program or pursuant
to a federal or state law, provided that except when collection of
personally identifiable information is specifically authorized by
federal law, data collected by those officials shall be protected in
a manner that will not permit the personal identification of pupils
or their parents by other than those officials, and personally
identifiable data shall be destroyed when no longer needed for the
audit, evaluation, and enforcement of federal legal requirements.
(4) In accordance with the federal Family Educational Rights
Privacy Act (20 U.S.C. 1232g), state and local officials or
authorities to whom the information is specifically allowed to be
reported or disclosed pursuant to state law adopted prior to November
19, 1974, and state and local officials or authorities to whom the
information is specifically allowed to be reported or disclosed
pursuant to state law adopted after November 19, 1974, if the
reporting or disclosure concerns the juvenile justice system and the
system's ability to effectively serve, prior to adjudication, the
pupil whose records are released, 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 read on
January 1, 2009.
(5) Parents of a pupil 18 years of age or older who is a dependent
as defined in Section 152 of the Internal Revenue Code of 1986.
(6) A pupil 16 years of age or older, or who has completed grade
10, and who requests access.
(7) A district attorney's office that is participating in or
conducting a truancy mediation program pursuant to Section 48263.5,
or Section 601.3 of the Welfare and Institutions Code, or
participating in the presentation of evidence in a truancy petition
pursuant to Section 681 of the Welfare and Institutions Code. For
purposes of this paragraph, a truancy mediation program under Section
48263.5 concerns the juvenile justice system and the system's
ability to effectively serve, prior to adjudication, the pupil whose
records are released, 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 read on January
1, 2009.
(8) A district attorney's office for consideration against a
parent or guardian for failure to comply with the Compulsory
Education Law (Chapter 2 (commencing with Section 48200)) or with
Compulsory Continuation Education (Chapter 3 (commencing with Section
48400)) if the reporting or disclosure concerns the juvenile justice
system and the system's ability to effectively serve, prior to
adjudication, the pupil whose records are released, 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 read on January 1, 2009.
(9) A probation officer or district attorney's office for the
purposes of conducting an investigation for juvenile adjudication,
declaring a person a ward of the court, or involving a violation of a
condition of probation, where the records are relevant to the
legitimate educational interests of the pupil, as these
investigations concern the juvenile justice system and the system's
ability to effectively serve, prior to adjudication, the pupil whose
records are released, and 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 read on January 1, 2009.
Law enforcement records may be released without consent, a subpoena,
or a court order.
(10) A judge or probation officer for the purpose of conducting a
truancy mediation program for a pupil, or for purposes of presenting
evidence in a truancy petition pursuant to Section 681 of the Welfare
and Institutions Code. For purposes of this paragraph, a truancy
mediation program under Section 48263.5 concerns the juvenile justice
system and the system's ability to effectively serve, prior to
adjudication, the pupil whose records are released, 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 read on January 1, 2009. The judge or probation officer
shall certify in writing to the school district that the information
will be used only for truancy purposes. A school district releasing
pupil information to a judge or probation officer pursuant to this
paragraph shall inform, or provide written notification to, the
parent or guardian of the pupil within 24 hours of the release of the
information.
(11) A county placing agency for the purpose of fulfilling the
requirements of the health and education summary required pursuant to
Section 16010 of the Welfare and Institutions Code or for the
purpose of fulfilling educational case management responsibilities
required by the juvenile court or by law and to assist with the
school transfer or enrollment of a pupil. School districts, county
offices of education, and county placing agencies may develop
cooperative agreements to facilitate confidential access to and
exchange of the pupil information by e-mail, facsimile, electronic
format, or other secure means.
(b) School districts may release information from pupil records to
the following:
(1) Appropriate persons in connection with an emergency if the
knowledge of the information is necessary to protect the health or
safety of a pupil or other persons.
(2) Agencies or organizations in connection with the application
of a pupil for, or receipt of, financial aid. However, information
permitting the personal identification of a pupil or his or her
parents may be disclosed only as may be necessary for purposes as to
determine the eligibility of the pupil for financial aid, to
determine the amount of the financial aid, to determine the
conditions that will be imposed regarding the financial aid, or to
enforce the terms or conditions of the financial aid.
(3) A county elections official pursuant to Section 99.37 of Title
34 of the Code of Federal Regulations, if the information is
directory information as defined in this paragraph, for the purpose
of identifying pupils eligible to register to vote, and for
conducting programs to offer pupils an opportunity to register to
vote if the pupil's parent's, or pupils who are 18 years of age or
older, have not opted out of participation in this voter registration
activity. The directory information that may be disclosed pursuant
to this paragraph shall be limited to a pupil's name, address,
telephone number, e-mail address, and date of birth, and shall not be
used for any other purpose or given or transferred to any other
person or agency.
(4) Accrediting associations in order to carry out their
accrediting functions.
(5) Organizations conducting studies for, or on behalf of,
educational agencies or institutions for the purpose of developing,
validating, or administering predictive tests, administering student
aid programs, and improving instruction, if the studies are conducted
in a manner that will not permit the personal identification of
pupils or their parents by persons other than representatives of the
organizations and the information will be destroyed when no longer
needed for the purpose for which it is obtained.
(6) (A) Officials and employees of private schools or school
systems where the pupil is enrolled or intends to enroll, subject to
the rights of parents as provided in Section 49068. This information
shall be in addition to the pupil's permanent record transferred
pursuant to Section 49068.
(B) A person, persons, agency, or organization permitted access to
pupil records pursuant to this section shall not permit access to
any information obtained from those records by any other person,
persons, agency, or organization, except for allowable exceptions
contained within the Family Educational Rights and Privacy Act of
2001 (20 U.S.C. Sec. 1232g) and state law, without the written
consent of the pupil's parent. This paragraph does not require prior
parental consent when information obtained pursuant to this section
is shared with other persons within the educational institution,
agency, or organization obtaining access, so long as those persons
have a legitimate educational interest in the information pursuant to
Section 99.31 of Title 34 of the Code of Federal Regulations.
(7) As permitted by Part 99 (commencing with Section 99.1) of
Title 34 of the Code of Federal Regulations, a public school district
may release pupil records without the consent of a parent or
guardian if all personally identifiable information has been removed,
provided the school district has made a reasonable determination
that a pupil's identity is not personally identifiable, whether
through single or multiple releases, and has taken into account other
reasonably available information.
(c) Notwithstanding any other law, a school district, including
any county office of education or superintendent of schools, may
participate in an interagency data information system that permits
access by authorized school officials to a computerized database
maintained by a noneducational governmental agency to information or
records that are nonprivileged, and where release is authorized as to
the requesting agency under state or federal law or regulation, if
each of the following requirements is met:
(1) Each agency and school district shall develop security
procedures or devices by which unauthorized personnel cannot access
data contained in the system.
(2) Each agency and school district shall develop procedures or
devices to secure privileged or confidential data from unauthorized
disclosure.
(3) Each school district shall comply with the access log
requirements of Section 49064.
(4) The right of access granted shall not include the right to
add, delete, or alter data without the written permission of the
agency holding the data.
(5) An agency or school district shall not make public or
otherwise release information on an individual contained in the
database where the information is protected from disclosure or
release as to the requesting agency by state or federal law or
regulation.
(6) A school district, including a county office of education or
superintendent of schools, shall not disclose personally identifiable
pupil information from educational records into this interagency
data information system unless permitted by Part 99 (commencing with
Section 99.1) of Title 34 of the Code of Federal Regulations.
SECTION 1. Section 49076 of the
Education Code is amended to read:
49076. (a) A school district is not authorized to
shall not permit access to pupil records to a
person without written parental consent or under judicial order
except that: as set forth in this section and
as permitted by Part 99 (commencing with Section 99.1) of Title 34
of the Code of Federal Regulations.
(1) Access to those particular records relevant to the legitimate
educational interests of the requester shall be permitted to the
following:
(A) School officials and employees of the school
district, members of a school attendance review board appointed
pursuant to Section 48321 who are authorized representatives of
the school district , and any volunteer aide, 18 years of age
or older, who has been investigated, selected, and trained by a
school attendance review board for the purpose of providing followup
services to pupils referred to the school attendance review board,
provided that the person has a legitimate educational interest to
inspect a record.
(B) Officials and employees of other public schools or school
systems, including local, county, or state correctional facilities
where educational programs leading to high school graduation are
provided or where the pupil intends to or is directed to enroll,
subject to the rights of parents as provided in Section 49068.
(C) Authorized representatives of the Comptroller General of the
United States, the Secretary of Education, and
administrative head of an education agency, state education
officials, or their respective designees state and
local educational authorities , or the United States
Department of Education's Office of for
Civil Rights, where if the
information is necessary to audit or evaluate a state or federally
supported education program or pursuant to a federal or
state law, provided that except when collection of personally
identifiable information is specifically authorized by federal law,
data collected by those officials shall be protected in a manner that
will not permit the personal identification of pupils or their
parents by other than those officials, and personally identifiable
data shall be destroyed when no longer needed for the audit,
evaluation, and enforcement of federal legal requirements
, or in connection with the enforcement of, or compliance with,
the federal legal requirements that relate to such a program. Records
released pursuant to this section shall comply with the requirements
of Section 99.35 of Title 34 of the Code of Fed eral
Regulations .
(D) Other state and local officials to the extent that information
is specifically required to be reported pursuant to state law
adopted prior to before November 19,
1974.
(E) Parents of a pupil 18 years of age or older who is a dependent
as defined in Section 152 of Title 26 of the United States Code.
(F) A pupil 16 years of age or older or having completed the 10th
grade who requests access.
(G) A district attorney who is participating in or conducting a
truancy mediation program pursuant to Section 48263.5, or Section
601.3 of the Welfare and Institutions Code, or participating in the
presentation of evidence in a truancy petition pursuant to Section
681 of the Welfare and Institutions Code.
(H) A prosecuting agency district attorney'
s office for consideration against a parent or guardian for
failure to comply with the Compulsory Education Law (Chapter 2
(commencing with Section 48200) of Part 27) ,
48200)) or with Compulsory Continuation Education (Chapter 3
(commencing with Section 48400) of Part 27)
48400)) .
(I) (i) A probation officer, district attorney, or counsel of
record for a 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.
(ii) For purposes of this subparagraph, a probation officer,
district attorney, and counsel of record for a minor shall be deemed
to be local officials for purposes of Section 99.31(a)(5)(i) of Title
34 of the Code of Federal Regulations.
(iii) Pupil records obtained pursuant to this subparagraph shall
be subject to the evidentiary rules described in Section 701 of the
Welfare and Institutions Code.
(J) A judge or probation officer for the purpose of conducting a
truancy mediation program for a pupil, or for purposes of presenting
evidence in a truancy petition pursuant to Section 681 of the Welfare
and Institutions Code. The judge or probation officer shall certify
in writing to the school district that the information will be used
only for truancy purposes. A school district releasing pupil
information to a judge or probation officer pursuant to this
subparagraph shall inform, or provide written notification to, the
parent or guardian of the pupil within 24 hours of the release of the
information.
(K) A county placing agency for the purpose of fulfilling
the requirements of the health and education summary required
pursuant to Section 16010 of the Welfare and Institutions Code or for
the purpose of fulfilling educational case management
responsibilities required by the juvenile court or by law and to
assist with the school transfer or enrollment of a pupil
when acting as an authorized representative of a
state or local educational agency pursuant to subparagraph (C)
. School districts, county offices of education, and county placing
agencies may develop cooperative agreements to facilitate
confidential access to and exchange of the pupil information by
electronic mail e-mail , facsimile,
electronic format, or other secure means , provided the
agreement complies with the requirements set forth in Section 99.35
of Title 34 of the Code of Federal Regulations .
(2) School districts may release information from pupil records to
the following:
(A) Appropriate persons in connection with an emergency if the
knowledge of the information is necessary to protect the health or
safety of a pupil or other persons. Schools or school districts
releasing information pursuant to this section shall comply with the
requirements set forth in Section 99.32(a)(5) of Title 34 of the Code
of Federal Regulations.
(B) Agencies or organizations in connection with the application
of a pupil for, or receipt of, financial aid. However, information
permitting the personal identification of a pupil or his or her
parents may be disclosed only as may be necessary for purposes as to
determine the eligibility of the pupil for financial aid, to
determine the amount of the financial aid, to determine the
conditions which will be imposed regarding the financial aid, or to
enforce the terms or conditions of the financial aid.
(C) The Pursuant to Section 99.37 of Title
34 of the Code of Federal Regulations, a county elections
official, for the purpose of identifying pupils eligible to register
to vote, and or for conducting programs
to offer pupils an opportunity to register to vote. The information
shall not be used for any other purpose or given or transferred to
any other person or agency.
(D) Accrediting associations in order to carry out their
accrediting functions.
(E) Organizations conducting studies for, or on behalf of,
educational agencies or institutions for the purpose of developing,
validating, or administering predictive tests, administering student
aid programs, and improving instruction, if the studies are conducted
in a manner that will not permit the personal identification of
pupils or their parents by persons other than representatives of the
organizations and , the information
will be destroyed when no longer needed for the purpose for which it
is obtained , and the organization enters into a written
agreement with the educational agency or institution that complies
with Section 99.31(a)(6) of Title 34 of the Code of
Federal Regulations .
(F) Officials and employees of private schools or school systems
where the pupil is enrolled or intends to enroll, subject to the
rights of parents as provided in Section 49068 and in compliance
with the requirements in Section 99.34 of Title 34 of the Code of
Federal Regulations . This information shall be in addition to
the pupil's permanent record transferred pursuant to Section 49068.
(3) A person, persons, agency, or organization permitted access to
pupil records pursuant to this section shall not permit access to
any information obtained from those records by another person,
persons, agency, or organization, except for allowable exceptions
contained within the federal Family Educational Rights and Privacy
Act of 2001 (20 U.S.C. Sec. 1232g) and state law, without the written
consent of the pupil's parent. This paragraph does not require prior
parental consent when information obtained pursuant to this section
is shared with other persons within the educational institution,
agency, or organization obtaining access, so long as those persons
have a legitimate educational interest in the information
pursuant to Section 99.31(a)(1)(i)(A) of Title 34 of the Code of
Federal Regulations .
(4) Notwithstanding any other provision of law, a school district,
including a county office of education or county
superintendent of schools, may participate in an interagency data
information system that permits access to a computerized database
system within and between governmental agencies or school
districts as to information or records that are nonprivileged, and
where release is authorized as to the requesting agency under state
or federal law or regulation, if each of the following requirements
are met:
(A) Each agency and school district shall develop security
procedures or devices by which unauthorized personnel cannot access
data contained in the system.
(B) Each agency and school district shall develop procedures or
devices to secure privileged or confidential data from unauthorized
disclosure.
(C) Each school district shall comply with the access log
requirements of Section 49064.
(D) The right of access granted shall not include the right to
add, delete, or alter data without the written permission of the
agency holding the data.
(E) An agency or school district shall not make public or
otherwise release information on an individual contained in the
database where if the information is
protected from disclosure or release as to the requesting agency by
state or federal law or regulation.
(b) The officials and authorities to whom pupil records are
disclosed pursuant to subdivision (f) of Section 48902 and
subparagraph (I) of paragraph (1) of subdivision (a) shall certify in
writing to the disclosing school district that the information shall
not be disclosed to another party, except as provided under the
federal Family Educational Rights and Privacy Act of 2001 (20 U.S.C.
Sec. 1232g) and state law, without the prior written consent of the
parent of the pupil or the person identified as the holder of the
pupil's educational rights.
(c) (1) Any person or party who is not permitted access to pupil
records pursuant to subdivision (a) or (b) may request access to
pupil records as provided for in paragraph (2).
(2) A local educational agency or other person or party who has
received pupil records, or information from pupil records, may
release the records or information to a person or party identified in
paragraph (1) without the consent of the pupil's parent or guardian
pursuant to Section 99.31(b) of Title 34 of the Code of Federal
Regulations, if the records or information are deidentified, which
requires the removal of all personally identifiable information,
provided that the disclosing local educational agency or other person
or party has made a reasonable determination that a pupil's identity
is not personally identifiable, whether through single or multiple
releases, and has taken into account other pertinent reasonably
available information.
SEC. 2. Section 49076.5 of the Education Code is amended to read:
49076.5. (a) Notwithstanding Section 49076, each school district
shall release the information it has specific to a particular pupil's
identity and location that relates to the transfer of that pupil's
records to another school district
within this state or any other state or to a private school
in this state to a designated peace officer, upon his or her
request, when a proper police purpose exists for the use of that
information. As permitted by Part 99 (commencing with Section 99.1)
of Title 34 of the Code of Federal Regulations, the designated peace
officer , or law enforcement agency ,
shall show the school district that the peace officer or
law enforcement agency has obtained prior written consent from one
parent, or provide information indicating that there is an emergency
in which the information is necessary to protect the health or safety
of the pupil or other individuals, or that the peace officer or law
enforcement agency has obtained a lawfully issued subpoena or a court
order.
(b) In order to protect the privacy interests of the pupil, a
request to a school district for pupil record information pursuant to
this section shall meet the following requirements:
(1) For purposes of this section, "proper police purpose" means
that probable cause exists that the pupil has been kidnapped and that
his or her abductor may have enrolled the pupil in a school and that
the agency has begun an active investigation.
(2) Only designated peace officers and federal criminal
investigators and federal law enforcement officers, as defined in
Section 830.1 of the Penal Code, whose names have been submitted to
the school district in writing by a law enforcement agency, may
request and receive the information specified in subdivision (a).
Each law enforcement agency shall ensure that each school district
has at all times a current list of the names of designated peace
officers authorized to request pupil record information.
(3) This section does not authorize designated peace officers to
obtain any pupil record information other than that authorized by
this section.
(4) The law enforcement agency requesting the information shall
ensure that at no time shall information obtained pursuant to this
section be disclosed or used for a purpose other than to assist in
the investigation of suspected criminal conduct or kidnapping. A
violation of this paragraph shall be punishable as a misdemeanor.
(5) The designated peace officer requesting information authorized
for release by this section shall make a record on a form created
and maintained by the law enforcement agency that shall include the
name of the pupil about whom the inquiry was made, the consent of a
parent having legal custody of the pupil or a legal guardian, the
name of the officer making the inquiry, the date of the inquiry, the
name of the school district, the school district employee to whom the
request was made, and the information that was requested.
(6) Whenever the designated peace officer requesting information
authorized for release by this section does so in person, by
telephone, or by some means other than in writing, the officer shall
provide the school district with a letter confirming the request for
pupil record information prior to before
any release of information.
(7) No A school district, or officer
or employee of the school district, shall not be subject
to criminal or civil liability for the release of pupil record
information in good faith as authorized by this section.