BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: AB 733
AUTHOR: Ma
AMENDED: June 16, 2011
FISCAL COMM: No HEARING DATE: June 22, 2011
URGENCY: No CONSULTANT:Lynn Lorber
NOTE: This bill has been referred to the Committees on
Education and Judiciary.
A "do pass" motion should include referral to the
Committee on Judiciary.
SUBJECT : Access to pupil records.
SUMMARY
This bill makes numerous technical changes to conform state
law with the federal Family Education Rights and Privacy Act
regarding access to pupil records without parental consent
or judicial order, as well as make more substantive changes
that are permitted by federal law.
BACKGROUND
Current law:
1) Prohibits, pursuant to the federal Family Educational
Rights and Privacy Act (FERPA), federal funds from
being made available to any educational agency or
institution which has a policy or practice of
permitting the release of a pupil's educational records
to any individual, agency, or organization without the
written consent of the student's parents. FERPA
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.
FERPA requires that the officials and authorities to whom
the records are released certify in writing that the
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information is not disclosed to any other party without
the prior written consent of the parent. (United
States Code, Title 20, Section 1232g, and Code of
Federal Regulations, Title 34, Sections 99.31 and
99.38)
2) Prohibits a school district from giving access to pupil
records to any person without written parental consent
or judicial order except as follows:
a) Requires access to records relevant to the
legitimate educational interests of the requester
to the following:
i) School officials, employees of the
school district, and members and volunteer
aids of a school attendance review board.
ii) Officials and employees of other
public schools, including where the pupil
intends to enroll or correctional facilities.
iii) Authorized representatives of
specified public agencies, where the
information is necessary to audit or evaluate
a state or federally supported education
program or pursuant to a state or federal law
(except personally identifiable information
unless specifically authorized by federal
law).
iv) Other state and local officials to
the extent that information is specifically
required to be reported pursuant to state law
adopted prior to November 19, 1974.
v) Parents of the pupil.
vi) A pupil who is at least 16 years
old or has completed the 10th grade.
vii) Any district attorney who is
participating in a truancy mediation program
or in the presentation of evidence in a
truancy petition.
viii) A prosecuting agency for
consideration against a parent for failure to
comply with compulsory education laws.
ix) 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
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condition of probation.
x) Any judge or probation officer for
the purpose of conducting a truancy mediation
program or presenting evidence in a truancy
petition.
xi) Any county placing agency for the
purpose of fulfilling the requirements of the
health and education summary or for
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.
b) Authorizes school districts to release
information from pupil records to the following:
i) People associated with an emergency
if necessary to protect the health or safety
of a pupil.
ii) Agencies or organizations in
connection with the application for financial
aid, with specified limitations on the use of
the information.
iii) The county elections official to
identify pupils eligible to register to vote
and for conducting programs to offer pupils
an opportunity to register to vote.
iv) Accrediting associations in order
to carry out their accrediting functions.
v) Organizations conducting studies
for educational agencies for the purpose of
developing, validating, or administering
predictive tests, administering student aid
programs, and improving instruction.
vi) Officials and employees of private
schools where the pupil is enrolled or
intends to enroll, as specified.
a) Authorizes school districts to participate in
an interagency data information system that
permits access to a computerized database system
within and between governmental agencies or
districts if specified requirements are met.
(Education Code � 49076)
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1) Requires each school district to release any
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 or to a
private school in this state, upon request to a peace
officer when a proper police purpose exists for the use
of that information. (EC � 49076.5)
Within the general parameters of FERPA, states are permitted
to adopt statutes that detail more specific exemptions and
procedures if those state statutes are consistent with
FERPA.
ANALYSIS
This bill makes numerous technical changes to conform state
law with the federal Family Education Rights and Privacy Act
regarding access to pupil records without parental consent
or judicial order, as well as make more substantive changes
that are permitted by federal law. Specifically, this bill:
1) Changes the exception to a prohibition on the release
of pupil records by a school district without parental
consent or judicial order, and adds a citation to the
related federal regulations.
2) Adds an exception to the prohibition against the
release of records for 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. The exception is
allowed if the reporting or disclosure concerns the
juvenile justice system and the ability to effectively
serve the pupil. The bill also adds a citation to
FERPA and related regulations, which currently provide
for this exception.
3) Clarifies that the exception for a district attorney's
office relative to truancy mediation or evidence in a
truancy petition concerns the juvenile justice system
and the ability to effectively serve the pupil, and
cites the federal regulations that authorize this
exception.
4) Changes "prosecuting agency" to "district attorney's
office" in the exception for consideration against a
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parent for failure to comply with compulsory education
laws. The bill also clarifies this exception is allowed
if the
reporting or disclosure concerns the juvenile justice
system and the ability to effectively serve the pupil,
and cites the federal regulations that authorize this
exception.
5) Clarifies that a probation officer or district
attorney's office may access records 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,
if the records are relevant to the legitimate
educational interests of the pupil. The bill provides
that these investigations concern the juvenile justice
system and the ability to effectively serve the pupil.
6) Clarifies that the exception for a judge or probation
officer relative to truancy mediation or evidence in a
truancy petition concerns the juvenile justice system
and the ability to effectively serve the pupil, and
cites the federal regulations that authorize this
exception.
7) Restricts the authority of a school district to release
pupil record information to a county elections official
for the purpose of identifying eligible voters to only
those pupils who have not been opted out of this
disclosure, and limits the information that may be so
obtained to a pupil's name, address, telephone number,
e-mail address, and date of birth.
8) Clarifies that, relative to the exception for officials
of private schools where the pupil is enrolled or
intends to enroll, and the sharing of information by
those officials, the legitimate interest of the other
person, agency or organization, is to be a legitimate
educational interest. The bill also adds a citation to
the federal regulations that authorize this exception.
9) Authorizes a public school to release pupil records
without parental consent if all personally identifiable
information has been removed, provided the district has
made a reasonable determination that the pupils'
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identity is not personally identifiable, whether
through single or multiple releases, and has taken into
account other reasonably available information. The
bill also adds a citation to the federal regulations
that authorize this release of information.
10) Clarifies that access to a computerized database
permitted through participation by a school district in
an interagency data information system is limited to
authorized school officials. The bill references the
database being maintained by a noneducational
governmental agency. The bill adds a prohibition on
school districts and county offices of education
disclosing personally identifiable pupil information
from educational records into this interagency data
information system unless permitted by federal
regulations.
11) Limits the release of pupil record information to a
designated peace officer or law enforcement agency to
those situations where the peace officer or law
enforcement agency has obtained prior written parental
consent, where there is an emergency in which the
information is necessary to protect the health and
safety of the pupil or other individuals, or where a
lawfully issued subpoena or court order has been
obtained. The bill adds a citation to federal
regulations that permit this limitation.
STAFF COMMENTS
1) Purpose of the bill . This bill amends California
statute so that it conforms to the precise language of
federal law, particularly on three issues: (a) the
release of educational records for law enforcement
purposes; (b) the release of personal information
within educational records for voter outreach efforts;
and (c) the sharing of student information within an
interagency data system.
In addition to making technical changes, this bill also
makes substantive changes: (a) provides that a peace
officer or law enforcement officer seeking pupil
records must obtain either a lawfully issued subpoena
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or court order or parental consent, or it must
demonstrate the existence of a health or safety
emergency that justifies disclosure; and (b) gives
parents an opportunity to opt out of an existing voter
registration program and limits the information that
may be disclosed. (# 7 & 11 above)
2) Why conform to FERPA ? State law has not been amended
to reflect updates that have been made to FERPA over
several years. The United States Department of
Education (USDOE) has annually warned the California
Department of Education (CDE) that outstanding issues
must be resolved and this resolution is a condition of
continued federal funding for special education. As a
result, the USDOE has issued a Conditional Grant Award
Letter to California when making the annual award of
funds under the federal Individuals with Disabilities
Education Act.
The USDOE is working to amend the regulations implementing
FERPA. The 45 day comment period on these proposed
regulations closed on May 23, 2011; the USDOE is
proceeding with the rulemaking process and expectations
are that this rulemaking process will extend, at least,
to the end of this calendar year. The USDOE is urging
California to conform its state law to exceptions to
parental consent prior to the release of pupil records,
but in the existing form and as interpreted under
current regulations. It is very possible that
California statute, even with the changes proposed by
this bill, will not conform to federal law and
regulations as they change under the federal rulemaking
process through this year. On one hand it may be
prudent to wait to conform state law until the new
regulations are issued. However, the USDOE continues
to threaten California's special education funding.
The CDE is currently preparing the state's application
for federal special education funds, and hopes to
demonstrate in this application that California is
working to reconcile the inconsistencies with FERPA.
3) Related legislation . AB 143 (Fuentes) adds to the list
of people who may obtain a pupil's school records, for
specified purposes, a minor's counsel of record and
requires those in receipt of such records to certify
that the information shall not be disclosed to another
person. AB 143 is scheduled to be heard in this
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Committee on June 22, 2011.
4) Prior legislation . AB 261 (Salas, 2009) was nearly
identical to this bill, as was AB 2630 (Salas, 2008).
Both bills were vetoed by the Governor, with the same
veto message:
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 requirements, and therefore could
expose the State to significant reimbursable state
mandate costs.
SUPPORT
Superintendent of Public Instruction
OPPOSITION
None on file.