BILL ANALYSIS �
AB 1937
Page 1
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1937 (Silva) - As Amended: April 10, 2012
SUBJECT : Pupil records: Privacy Rights
KEY ISSUE : Should school distrcts be permitted to release
information from student records to school resource officers,
consistent with federal law?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Sponsored by the Orange County Department of Education, this
bill would permit, but not require, a local school district to
disclose information from student records to certain contractors
and consultants who perform services and functions that would
otherwise be performed by employees, so long as they are under
the direct control of the district with respect to use and
maintenance of the records, have a legitimate educational
interest in the information, and use the information only for
those legitimate educational purposes. In particular, the
sponsor has in mind School Resource Officers (SRO). Although
neither state law nor this bill uses the term "School Resource
Officer," it generally refers to law enforcement officers with
whom a school district contracts to provide security and safety
services at the school. According to the sponsor, most SROs are
police officers or trained security officers retained by the
school districts, either directly or by contract with a local
law enforcement agency. The Federal Family Educational Rights
and Privacy Act (FERPA), a federal law that set minimum
standards for protecting student records, already permits
districts to release information from student records to
contractors and consultants, so long as the school district has
determined that they have a legitimate educational interest in
the records. This bill would amend state law so that it too
permits release of information to contractors and consultants,
so long as they are subject to the same requirements and
limitations that exist in FERPA. The bill is opposed by the
ACLU unless it is amended to specify that the information must
serve the pupil's educational interest and to require
AB 1937
Page 2
consultants to be properly "trained and proficient" in student
record policies and practices. This bill passed out of the
Assembly Transportation Committee, with amendments, by a 7-1
vote.
SUMMARY : Permits a local school district to release information
from pupil records to a contractor, consultant, or other party
to whom a local educational agency or institution has outsourced
institutional services or functions. Specifically, this bill :
1)Provides that a school district may release information from
pupil records to a contractor, consultant, or other party to
whom the district has outsourced institutional services or
functions, provided that the party complies with all of the
following:
a) Performs an institutional service or function for which
the agency or institution would otherwise use employees.
b) Is under the direct control of the agency or institution
with respect to the use and maintenance of institutional
records.
c) Uses the information only for purposes for which the
disclosure was made and does not disclose the information
to any other party without the prior written consent of the
parent or eligible pupil.
2)Requires districts to use reasonable methods to ensure that a
contractor, consultant, or other party obtains access only to
those educational records in which that party has a legitimate
educational interest. Specifies that a district that does not
use physical or technological access controls shall ensure
that its administrative policy for controlling access to
educational records is effective and that it remains in
compliance with a legitimate educational interest.
3)Provides that access to records of students with exceptional
needs shall be subject to additional procedural safeguards, as
specified.
EXISTING LAW :
1)Prohibits a school district from permitting access to student
records and information to any person without written parental
consent or pursuant to a judicial order, subject to specified
exceptions. (Education Code Section 49076 (a).)
AB 1937
Page 3
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) Parents of a pupil 18 years of age or older who is still
a dependent, as defined.
e) A student 16 years of age or older, or who has completed
grade 10, and who requests access.
f) 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.
g) A prosecuting agency for consideration of prosecution
against a parent or guardian for failure to comply with
compulsory education laws.
h) A probation officer, district attorney, or counsel of
record 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.
i) A county agency engaged in the placement of foster youth
for the purpose of fulfilling case management
responsibilities. (Education Code Section 49076 (a) (1).)
3)Provides that a school district may release information from
student records to the following:
AB 1937
Page 4
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
(a)(2).)
4)Requires officials and authorities to whom pupil records are
disclosed pursuant to 2) above to certify in writing to the
disclosing school district that the information shall not be
disclosed to another party, except where authorized by federal
or state law, without the prior written consent of the parent
or other person holding the pupil's educational rights.
(Education Code Section 49076 (b).)
5)Permits a 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).)
6)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.)
AB 1937
Page 5
7)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 : This bill is sponsored by the Orange County
Department of Education. According to the author and sponsor,
this bill would permit, but not require, a local school district
to disclose information from student records to School Resource
Officers (SROs), so long as the SRO is under the supervision of
the district, has a legitimate educational interest in the
information, and uses the information only for those legitimate
educational purposes. Although neither state law nor this bill
uses the term "School Resource Officer," the term generally
refers to law enforcement officers with whom a school district
contracts to provide security and safety services at the school.
According to the sponsor, most SROs are police officers or
trained security officers retained by the school districts,
either directly or by contract with a local law enforcement
agency. The Federal Family Educational Rights and Privacy Act
(FERPA), a federal law that set minimum standards for protecting
student records, allows contractors and consultants, including
SROs, to have access to information in student records so long
as the school has determined that the SRO has legitimate
educational interest in the records. This bill would amend
state law so that it too permits SROs to obtain information from
student records, so long as they are subject to the same
requirements and limitations that exist in FERPA. According to
the author and sponsor, SROs need access to information in
student records for a variety of reasons, including determining
whether a student is truant, confirming that a person seen on
campus is actually a student, or knowing if a particular student
has a pattern of violations at the school.
Federal Law : 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, or personal
information within those records, without written parental
consent. This general rule is subject to several exemptions.
Most of the FERPA exemptions relate to the practical need to
AB 1937
Page 6
transfer records between educational institutions, respond to
law enforcement inquiries, or make other disclosures in the
context of a health or safety emergency. However, within 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, which
draws its language directly from the relevant portions of FERPA,
appears to be consistent with FERPA.
Specifically, FERPA provides that a school district may disclose
personal information from a student record, without parental
consent, to a "contractor, consultant, volunteer, or other party
to whom an �educational] agency or institution has outsourced
institutional services or functions" provided that party: (1)
performs an institutional service or function for which the
agency would otherwise use employees; (2) is under the direct
control of the agency or institution with respect to the use and
maintenance of education records; and (3) is subject to certain
restrictions governing the use and disclosure of personally
identifiable information from education records. FERPA also
requires the educational agency or institution to use reasonable
means to ensure that these contractors, consultants, volunteers,
or other parties obtain access only to those records in which
they have a legitimate educational interest.
This bill adds certain contractors and consultants to an
existing list of persons and entities who may be permitted to
receive information from a student's records. It does this by
adopting the exact FERPA language, albeit with a few minor
exceptions. First, it deletes "volunteers" from the list of
parties that would deemed "school officials" with access to
information from student records; second, in order to maintain
consistency and avoid confusion with state law usages, the
"consultants, contractors, and other parties" added to the list
of persons who have access to student information are not deemed
"school officials," as they are in federal law; and third this
bill adds a provision that specifies that access to any record
of a student with exceptional needs will be subject to
provisions of a state law that creates special procedural
safeguards for special education students. In addition, it
should be noted that these provisions have been inserted among
the "permissive" disclosures of state law. The existing statute
distinguishes between "mandatory" and "permissive" disclosures.
Disclosures are generally only mandatory when connected to law
AB 1937
Page 7
enforcement investigations or for certain juvenile justice
purposes. Although SROs perform a quasi-law enforcement
function, they are not entitled to mandatory disclosure. A
school district may disclose the information, but only if it is
convinced that the SRO is obtaining the information for a
legitimate educational purpose. Finally, it should be stressed
the permissive disclosures - unlike the mandatory disclosures -
do not permit release of students records, per se, but only
permit release of information from those records.
ARGUMENTS IN SUPPORT : According the sponsor - the Orange County
Department of Education (OCDE) - this bill will make California
law conform to FERPA and thereby "eliminate confusion by
�school] districts as to whom they can disclose student records
and the procedures they must follow." OCDE explains that SROs
"serve at schools to assist with campus safety and security,"
and to do this effectively they sometimes need personal
information from student records. "For example," OCDE writes,
"such records can aid the SRO in determining whether a
particular student is truant, confirming whether an individual
seen on campus is a student, establishing where a student should
be at a particular time of day, and establishing whether the
student has a pattern of conduct violations at school." OCDE
concludes "Given the differences between state and federal
student privacy laws, as well as the limited disclosures to
peace officers permitted under state law, it would be helpful
for school districts to know whether SROs and other contractors
. . . may lawfully access student records when they have a
legitimate educational interest."
The Los Angeles County Office of Education supports this bill
for similar reasons, arguing that this bill will align the state
"personnel access to student records with the personnel
standards identified under �FERPA] and will allow individuals
who serve schools a narrowly tailored access to school records."
Similarly, the California School Board Association, which
represents nearly 1,000 school districts and county school
boards statewide, support this bill because it will permit SROs
to perform their duties more effectively by mirroring federal
law and allowing districts to disclose information to parties
whom it has already determined to have a legitimate educational
interest in those records.
ARGUMENTS IN OPPOSITION UNLESS AMENDED : ACLU opposes this bill
unless it is amended. In particular, while ACLU says that it
AB 1937
Page 8
understands that this bill is an effort to conform state law to
FERPA, "California's Constitutional right to privacy (Art. 1,
Sec. 1) warrants additional provisions." Furthermore, ACLU
argues that "if schools choose to share private pupil
information with outside consultants or 'other parties,' the
school needs to ensure that these outside parties do not use the
student's own information to harm the student and they must
ensure that these outside entities respect the confidentiality
of the information." ACLU especially objects to the notion that
this bill appears to protect only the outside party's
"educational interest" but not the pupil's "educational
interest." To this end, they propose inserting a provision to
provide that the information may only be used "to the extent
that it furthers the pupil's educational interest." In
addition, ACLU seeks an amendment that would specify that the
school can only release information if the contractor,
consultant, or other party is "trained and proficient in pupil
records privacy policy and practices."
Author Response to ACLU Proposed Amendments : The author has
informed the Committee that he does not intend to take ACLU's
informed amendments, at least not both of them and not at this
time. To begin with the author contends that the ACLU proposal
to require consideration of the pupil's educational interest is
not really relevant to this modest bill. That is, this bill
only seeks, consistent with FERPA, to add "contractors,
consultants, and other parties" to the list of persons and
entities to whom a school district may disclose information from
a student's records. It does not seek to amend any other
section of existing law. Indeed, the Committee notes that none
of the other existing required or permissive disclosures require
a consideration of legitimate educational interests unique to
the student. The required disclosures expressly state the
records must be relevant to the legitimate educational interests
"of the requester." The permissive disclosures generally do not
require a consideration of legitimate educational interest at
all. In addition, the provision added by this bill, and the
FERPA language that it comes from, does not speak in the terms
of the requesting party's educational interest, but in the terms
of the school's determination that the requesting party "has a
legitimate educational interest" in the information. In other
words, the school (not the requesting party) will determine
whether there is a legitimate educational interest at stake.
As for the ACLU's proposed amendment to require that the
AB 1937
Page 9
contractor or consultant be "trained and proficient in pupil
records privacy policies and practices," the author is not
willing to commit to such a change at this time. First, none of
the other voluntary disclosures require "training" of the
recipient; second, it is not clear when a party would be deemed
"proficient" in pupil record privacy policies and practices and
of what this training would consist. It should also be noted
that under permissive disclosures, the requesting party has
access to information from the records; it does not control the
records themselves, which remain under the control of the
school. It is not clear why SROs would need training in "pupil
records privacy policies and practices" when they do not control
those records but only have a right to information from them if
the school deems that there is a legitimate educational interest
in the information.
In order to clarify this last point, the Committee recommends
that the author take the following clarifying amendment in the
one instance where this is not as clear as it should be:
- On page 6 line 39 after "to" insert: information from
the
REGISTERED SUPPORT / OPPOSITION :
Support
Orange County Department of Education (sponsor)
California School Boards Association
Los Angeles County Department of Education
Opposition
ACLU (unless amended)
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334