BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 733 (Ma)
As Amended June 16, 2011
Hearing Date: June 28, 2011
Fiscal: No
Urgency: No
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SUBJECT
Pupil Records: Privacy Rights
DESCRIPTION
This bill would amend various provisions of state law relating
to permissible disclosure of student records in order to comply
with federal law and preserve state eligibility for more than
$1.2 billion in annual federal special education funding.
BACKGROUND
Pursuant to the 1997 reauthorization of the Individuals with
Disabilities Education Act (IDEA), Congress required states to
prove compliance with federal law by submitting a copy of state
policies and procedures to the Office of Special Education
Programs in the federal Department of Education (USDOE). After
reviewing the state's policies and procedures in 2003, the
federal Family Policy Compliance Office issued instructions
addressing areas of the Family Educational Rights and Privacy
Act (FERPA) where California law fell short of compliance.
Under the most recent reauthorization of the IDEA, states are
required to provide assurances to USDOE as to compliance with
all federal requirements.
Because California statutes have not yet been conformed to all
the requirements of FERPA, the USDOE has annually warned the
state "previous outstanding items must be resolved and are
conditions of continued federal funding" and has issued a
Conditional Grant Award Letter to the California Department of
Education when awarding IDEA funds. If California law is not
brought into compliance with federal law, the USDOE is
(more)
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authorized to sanction the California Department of Education or
reduce or withhold federal IDEA funds the state receives for the
provision of special education services. (See generally 34
C.F.R., Part 300, Secs. 300.178 - 300.186.)
This bill is nearly identical to AB 261 (Salas, 2009) and AB
2630 (Salas, 2008). Both bills were vetoed by the governor who
cited Department of Finance concerns that they would create
reimbursable state mandates despite the fact that: (1) the
Legislative Counsel determined that those two bills were
non-fiscal and did not contain a state-mandated local program
and (2) even if they did impose a state mandated local program,
a state mandate is not reimbursable when the state adopts an
implementing statute pursuant to a federal mandate, as the bills
proposed to do (Hayes v. Com. on State Mandates (1992) 11
Cal.App.4th 1564, 1593).
In order to preserve eligibility for continued federal funding,
this bill, sponsored by the Superintendent of Public
Instruction, would amend various provisions relating to
permissible disclosure of student records in order to comply
with federal law and preserve state eligibility for more than
$1.2 billion in annual federal special education funding.
This bill was approved by the Senate Committee on Education on
June 22, 2011 by a vote of 9-0.
CHANGES TO EXISTING LAW
Existing federal law , the Family Education Rights and Privacy
Act (FERPA), requires as a condition to receipt of federal
education funds that California law comply with federal student
record disclosure protections. (34 C.F.R. 99.1, 34 C.F.R.
99.62.)
Existing law prohibits a school district from providing student
records to a person without written parental consent or a court
order, with specified exceptions. (Ed. Code Sec. 49076.)
Existing law requires a school district, notwithstanding the
above, to provide access to records that are relevant to the
legitimate educational interests of specified requesters,
including, among others, the following:
members of a school attendance review board, and designated
school officials and employees;
officials or employees of other public schools or school
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systems;
other federal, state, and local officials as authorized by
federal or state law;
a student 16 years of age or older, or who has completed grade
10, and who requests access;
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;
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;
a judge or probation officer for the purpose of conducting a
truancy mediation program or presenting evidence in a truancy
petition; or
a county agency engaged in the placement of foster youth for
the purpose of fulfilling case management responsibilities.
(Ed. Code Sec. 49076.)
Existing law permits a school district to release information
from student records to, among others, the following:
people associated with an emergency if the knowledge of the
information is necessary to protect the health or safety of a
student or other persons;
agencies or organizations in connection with the application
of a student for financial aid, as necessary to determine
financial aid eligibility;
county election officials for the purpose of identifying
students eligible to register to vote;
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; or
officials and employees of private schools for purposes of
transferring enrollment, subject to parental notification, as
specified. (Ed. Code Sec. 49076 (b).)
This bill would make various changes to state law designed to
comply with FERPA. Specifically, this bill seeks to conform
state law to federal law with respect to exceptions for
disclosure of student records by:
providing, generally, that a school district is not authorized
to permit access to student records to a person without
written parental consent or under court order, except under
specified conditions, and to specified officials, as permitted
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by Part 99 of Title 34 of the Code of Federal Regulations;
clarifying that existing access to student records under the
following circumstances comports with federal law because the
circumstances concern the juvenile justice system and the
system's ability to effectively serve, prior to adjudication,
the student whose records are released pursuant to, and
consistent with, Section 99.38 of Title 34 of the Code of
Federal Regulations:
a. access to student records by a district attorney's
office participating in a truancy mediation program, as
defined;
b. access to student records by a probation officer or
district attorney's office for purposes of conducting an
investigation for juvenile adjudication, declaring a person
a ward of the court, or involving a condition of probation,
so long as the records are relevant to the legitimate
education interests of the student;
c. access to student records by a judge or probation
officer for the purpose of conducting a truancy mediation
program or presenting evidence in a truancy petition, as
defined;
amending the existing exemption providing county election
officials access to student information for the purpose of
identifying students eligible to register to vote and for
conducting programs to offer students an opportunity 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. Only directory information may be
disclosed to county elections officials, and that information
shall be limited to a student's name, address, telephone
number, email address and date of birth;
amending existing exemptions that allow limited data sharing
between schools for purposes of a student transfer, or between
schools, a county office of education, or superintendent of
schools, for purposes of maintaining a data information
system, so long as the above persons have a legitimate
educational purpose;
clarifying that access to an interagency data information
system is limited to authorized officials;
clarifying that, without the prior written consent of a
parent, student identity and location information may only be
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disclosed by a school district to law enforcement pursuant to
a subpoena or court order, or upon providing information to
the school district indicating there is an emergency in which
the information is necessary to protect the health or safety
of the student; and
authorizing a public school to release student records without
the consent of a parent or guardian as long as all personally
identifiable information has been removed, provided that the
school district has made a reasonable determination that the
student's identity is not personally identifiable, whether
through single or multiple releases, and has taken into
account other reasonably available information.
COMMENT
1. Stated need for the bill
The author writes:
By amending Sections 49076 and 49076.5 of the Education Code
the state will help ensure that California will retain its
federal IDEA grant funding eligibility so that it can continue
to receive the more than $1.2 billion federal grant for the
provision of special education services to students with
special needs.
The US Department of Education �has] specifically identified
three portions of the Education Code as being out of
compliance with FERPA regulations. As a result of these
portions of the Education Code being found to be out of
compliance, the state's IDEA Grant has been on conditional
status for several years. Currently, the state is preparing
its 2011-12 IDEA Grant application and must be able to
demonstrate that it is making every effort to bring the state
into compliance with federal law. If these specific sections
of the education code continue to go unaddressed it may
jeopardize California's future IDEA eligibility.
The State Superintendent of Public Instruction, sponsor of the
measure, writes that the bill "would come at no cost to the
state as it will simply provide that the EC �Education Code]
complies with what is required by federal law. AB 733 has been
carefully and inclusively crafted with various stakeholders,
including the educational community and law enforcement
representatives. . . . By passing this measure, you will help
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the state take this necessary step to ensure that California's
IDEA grant eligibility is not at risk for the 2011-12 fiscal
year and that the privacy rights of students and their families
are protected."
2. Bill would conform state law exceptions for disclosure of
student records to federal law
This bill would make various changes to state law designed to
comply with FERPA. With respect to California law's
noncompliance with FERPA, this bill would conform state law to
federal law on three issues identified by the Family Policy
Compliance Office: (1) the release of student records for law
enforcement purposes; (2) the release of personal information
within student records for voter outreach efforts; and (3) the
sharing of student information within an interagency data
system. Many of the changes proposed by the bill are technical
and clarifying in nature, but two in particular are substantive.
Those provisions would relate to law enforcement access to
student records and giving parents an opportunity to opt out of
an existing voter registration program.
a. Disclosure of student information to law enforcement
This bill would clarify that, without the prior written
consent of a parent, student identity and location information
may only be disclosed by a school district to law enforcement
pursuant to a subpoena or court order, or upon providing
information to the school district indicating there is an
emergency in which the information is necessary to protect the
health or safety of the student.
Section 99.30 of Title 34 establishes the general rule that a
school must obtain parental written consent prior to
disclosing student information. Federal law provides an
exception to this rule if, among other exceptions, a school
discloses information pursuant to a "judicial order or a
lawfully issued subpoena." (34 C.F.R. Sec. 99.31 (9)(i).)
Authorization for disclosure pursuant to written parental
consent or court order is thus required both by existing state
and federal law.
It is also important to note that this bill and AB 261 and AB
2630 include an exception permitting disclosure to law
enforcement when they "provide information indicating that
there is an emergency in which the information is necessary to
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protect the health or safety of the pupil or other
individuals." (See page 7, lines 16-18.) Federal law
expressly requires that schools be permitted to disclose
specified student information "if knowledge of the information
is necessary to protect the health or safety of the student or
other individuals." (34 CFR, Secs. 99.31 (10), 99.36 (a).)
Thus, as drafted, AB 733 authorizes school officials to
disclose information to law enforcement under circumstances
specifically required by federal law, and therefore the
proposed amendment does not establish a reimbursable state
mandate.
b. Opt out for voting information
This bill would amend existing state law governing disclosure
of student information to election officials to require that
the student's parent, or the student if 18 years of age or
older, first be given the opportunity to opt out of this voter
registration activity. (See page 5, lines 5-12.) Under the
bill, county elections officials would only be able to obtain
directory information which is limited to the following
information: a student's name, address, telephone number,
email address and date of birth.
Pursuant to federal law, the type of student information that
may be disclosed to elections officials under state law can
only be disclosed if the student's parent, or the student, if
he or she is 18 years of age or older, first is given the
opportunity to opt out. (34 C.F.R. 99.37.) Because AB 733
merely conforms state law to the federal law's opt out
requirement, this aspect of the measure also fails to
constitute a reimbursable state mandate.
3. U.S. Department of Education currently reviewing FERPA
regulations
In April of this year, the U.S. Department of Education (USDOE)
issued a Notice of Proposed Rule Making to revise the
regulations implementing FERPA. According to the USDOE, "�t]he
proposed regulations would give states the flexibility to share
data to ensure that taxpayer funds are invested wisely in
effective programs."
As noted in the Background, the USDOE has annually urged
California to conform its statutes to all of the requirements of
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FERPA. As long as California law does not comply with federal
law, the USDOE is authorized to sanction the state or reduce or
withhold federal IDEA funds the state receives for the provision
of special education services.
The sponsor acknowledges the rulemaking process, but notes that
the bill is still needed because "this has been a long standing
issue that is the last remaining area of identified
non-compliance, which is the cause of the conditional status; we
determined that the currently proposed federal regulations do
not impact the regulations with which we have been found to be
in non-compliance; and it's unclear whether compliance
legislation will be needed next year depending on what is
adopted."
In addition, by enacting this bill, the state hopes to
demonstrate its commitment to working to address the
inconsistencies between state law and FERPA.
4. Prior bills vetoed
This bill is nearly identical to AB 261 (Salas, 2009) and AB
2630 (Salas, 2008), which were both vetoed by the governor. The
governor used the same veto message on both bills:
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 : None Known
Opposition : None Known
HISTORY
Source : Superintendent of Public Instruction
Related Pending Legislation : AB 143 (Fuentes), which adds
minor's counsel to the list of individuals who may access a
student's records for certain purposes, is scheduled to be heard
in this committee on July 5, 2011.
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Prior Legislation :
AB 261 (Salas, 2009) See Background and Comment 4
AB 2630 (Salas, 2008) See Background and Comment 4
Prior Vote :
Senate Education Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 77, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Education Committee (Ayes 10, Noes 0)
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