BILL ANALYSIS �
AB 733
Page 1
Date of Hearing: May 10, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 733 (Ma) - As Amended: March 25, 2011
PROPOSED CONSENT
SUBJECT : Student Records: Privacy Rights
KEY ISSUE : Should the California statute prohibiting the
disclosure of student educational records without parental
consent, except as specified, be amended to conform to federal
law?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
As a condition for receipt of federal funding, federal law
generally prohibits access to a student's educational 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 (USDE) has warned the
California Department of Education that the California statute
governing access to student records has not been amended to
conform to changes in the federal Family Educational Rights and
Privacy Rights Act (FERPA). More ominously, USDE warned that
failure to amend the existing statute would jeopardize continued
federal funding for certain special education programs. This
seemingly non-controversial bill seeks to bring state law into
conformity with FERPA so as not to jeopardize federal funding,
which according to the author amounts to about $1.2 billion per
year. This measure is nearly identical to AB 261 of 2009, which
in turn was nearly identical to AB 2630 of 2008. Despite
language that reflected a negotiated consensus between various
stakeholders and overwhelming bi-partisan support in both
houses, both prior bills were vetoed by the Governor. In both
instances, the Governor cited Department of Finance assessments
that the bills would have created a reimbursable state mandate,
even though Legislative Counsel had keyed both bills non-fiscal
and found, in each instance, that the bills did not create a
state-mandated local program. Legislative Counsel has, for a
third time, determined that this measure does not create a
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reimbursable state-mandated program. This bill, which is
sponsored by the State Superintendent of Public Instruction,
passed out of the Assembly Education Committee last week on
consent. There is no opposition to the bill. The California
School Boards Association supports this bill but would like an
amendment that tracks FERPA provisions relating to another issue
that they are discussing with the author.
SUMMARY : Makes various changes to the existing statute that
limits the disclosure of student educational records in order to
bring it into conformity with the federal Family Educational and
Privacy Rights 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 FERPA regulations.
2)Clarifies that a district attorney's office, judge, or
probation officer 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, FERPA
regulations.
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, FERPA regulations.
4)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 student's parent, or the
student if 18 years of age or older, the opportunity to opt
out of this voter registration activity.
5)Amends existing exemptions that allow limited data sharing
between schools and other specified educational agencies, to
prohibit the disclosure of personally identifiable information
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to an interagency data information system, unless the
disclosure is permitted under FERPA regulations.
EXISTING LAW :
1)Prohibits a school district from permitting access to student
records to any person without written parental consent or
pursuant to a judicial order, subject to specified exceptions.
(Education Code Section 49076.)
2)Provides, notwithstanding the above, that access to particular
records relevant to the legitimate educational interest of the
requester shall be permitted to the following:
a) Members of a school attendance review board, and
designated school officials and employees, for the purpose
of providing follow up services to students referred to the
board.
b) Officials or employees of other public schools or school
systems for purposes of transfer of enrollment, subject to
parental notification, as specified.
c) Other federal, state, and local officials as authorized
by federal or state law.
d) A student 16 years of age or older, or who has completed
grade 10, and who requests access.
e) A district attorney, judge, or probation officer who is
participating in or conducting a truancy mediation program
or participating in the presentation of evidence in a
truancy petition, as specified.
f) A prosecuting agency for consideration of prosecution
against a parent or guardian for failure to comply with
compulsory education laws.
g) 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.
h) A county agency engaged in the placement of foster youth
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for the purpose of fulfilling case management
responsibilities. (Education Code Section 49076 (a)
(1)-(11).)
3)Provides that a school district may release information from
student 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 student or other persons.
b) Agencies or organizations in connection with the
application of a student for financial aid, as necessary to
determine financial aid eligibility.
c) County election officials for the purpose of identifying
students eligible to register to vote, as specified.
d) Accrediting associations as necessary to carry out
accrediting functions.
e) Organizations conducting studies on behalf of
educational agencies or institutions, relating to the
development, validation, or administration of predictive
tests, the administration of student aid programs, or the
improvement of instruction.
f) Officials and employees of private schools for purposes
of transferring enrollment, subject to parental
notification, as specified. (Education Code Section 49076
(b).)
4)Permits to school district to participate in an interagency
data information system that permits access to a computerized
database within and between government agencies, subject to
certain security protections. (Education Code Section 49076
(c).)
5)Notwithstanding the above provisions, a school district shall
release information relating to a student's identify and
location, as it relates to a student's transfer to another
school, to a designated peace officer when a proper police
purpose exists for that information. (Education Code Section
49076.5.)
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6)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 educational
records (or personally identifiable information contained
therein) of a student without express written parental
consent, except as provided. (20 U.S.C. Section 1232g (b); 34
CFR Part 99.)
COMMENTS : The federal Family Educational Rights and Privacy Act
(FERPA) protects the privacy of students by prohibiting a person
from having access to a student's records without written
parental consent, subject to narrow exemptions. FERPA applies
to all schools that receive funds from the United States
Department of Education (USDE) and prohibits the disbursement of
funds to any school that does not meet FERPA privacy criteria.
Pursuant to this general law, 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 FERPA
regulations. After reviewing this material, the federal Family
Policy Compliance Office (FPCO) determined that California
statutes had not been amended to bring the state law into
compliance with subsequent changes in federal law and, beginning
in 2003, has warned the state that its failure to amend state
law to conform to federal law could jeopardize continued receipt
of IDEA funds. This bill is sponsored by State Superintendent
of Public Instruction, Tom Torlakson, who contends that
California is in danger of losing at least $1.2 billion in IDEA
grants that provide critical funding to special education in
California.
FERPA sets forth several exemptions that permit a school to
disclose a student's records without parental consent. Most of
these relate to the practical need to transfer records between
educational institutions, respond to law enforcement purposes,
or make other disclosures in the context of a health or safety
emergency. However, within with the general parameters of
FERPA, states are permitted to adopt statutes that detail more
specific exemptions and procedures so long as they are
consistent with the guidelines and policy objectives of FERPA.
According to the author, this bill seeks to amend the California
statute so that it conforms to the precise language of federal
law, particularly on three issues identified by FPCO: (1) the
release of educational records for law enforcement purposes; (2)
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the release of personal information within educational records
for voter outreach efforts; and (3) the sharing of student
information within an interagency data system. In addition to
language specifying that various disclosures required or
permitted by state law must be consistent with FERPA, the bill
also makes substantive changes, including clarification that a
peace officer or law enforcement officer seeking records must
obtain either a lawfully issued subpoena or court order or
parental consent, or it must demonstrate the existence of a
health or safety emergency that justifies disclosure. The bill
also amends existing law to give parents an opportunity to opt
out of an existing voter registration program and specifies a
school district may not disclose personally identifiable
information to an interagency data information system except as
permitted by FERPA.
Prior Vetoes of AB 2630 (2008) and AB 261 (2009) . As noted
above, since 2003 the USDE has been warning California that
state law provisions protecting the privacy of student records
are out of compliance with FERPA. For the last four fiscal
years, federal IDEA grants to California for special education
programs have been on "provisional" status. Two previous
efforts to address this issue - AB 2630 of 2008 and AB 261 of
2009 - were nearly identical to the measure now before the
Committee. Each of those previous measures passed out of this
Committee unanimously. Last year's AB 261 did not receive a
single negative vote in any committee or floor vote.
Nonetheless, both AB 2630 and AB 261 were vetoed by the Governor
based on analyses by the Department of Finance (DOF) that the
bills created a reimbursable state-mandated local program. DOF
reached this conclusion despite the fact that the Legislative
Counsel concluded both times that the bills did not create such
a mandate. Legislative Counsel has once again keyed this
measure as non-fiscal and has concluded once again that it does
not create a state-mandated local program.
ARGUMENTS IN SUPPORT : According to State Superintendent of
Public Instruction Tom Torlakson, the sponsor, "AB 733 is a
much-needed conformity measure" that will bring the California
Education Code into compliance with FERPA." Superintendent
Torlakson notes that, for the last several years, federal IDEA
grants to California have had a "conditionally approved" status
because of an alleged lack of conformity between state and
federal law. Mr. Torlakson writes that this measure "will help
to ensure that the state retains its federal IDEA grant
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eligibility and the more than $1.2 billion it receives for the
provision of special education services for students with
special needs."
In response to the prior vetoes of similar bills, the author
correctly notes that Legislative Counsel has again concluded
that the bill does not create a state-mandated local program
and, moreover, even if it did, laws that are enacted to conform
to a federal mandate do not create a reimbursable state mandate.
The author also notes that the state is currently preparing its
2011-2012 IDEA grant application "and must be able to
demonstrate that it is making every effort to bring the state
into compliance with federal law."
ARGUMENTS IN SUPPORT IF AMENDED : The California School Boards
Association (CSBA) supports this bill but would like an
additional amendment. CSBA points out, correctly, that FERPA
permits the disclosure of student records that are
"de-identified" - meaning that any personal identification
information that could link the record to the student has been
removed. (34 CFR 99.31 (b)(1).) CSBA seeks an amendment
tracking federal language that will permit such disclosures, and
they are in discussions with the author on that issue.
Pending Related Legislation : AB 143 (Fuentes, 2011-2012
session) would add to the list of persons who may obtain student
educational records, for purposes of criminal investigation and
juvenile adjudication, a minor's counsel of record, and it
requires persons in receipt of such records to certify that the
information shall not be disclosed to another person, except as
specified.
REGISTERED SUPPORT / OPPOSITION :
Support
State Superintendent of Public Instruction, Tom Torlakson
(sponsor)
California School Boards Association (CSBA) (if amended)
Opposition
None on file
AB 733
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Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334