FERPA and Video Surveillance: Compliance and Disclosure

1. Ask Matt - November 2011 – FERPA – Surveillance Video and Emergencies Matt Carver, J.D., Director of Legal Services tel - 515.267.1115 fax - 515.267.1066

2. Family Educational Rights and Privacy Act (FERPA) – Video Surveillance • Video and investigative reports created and maintained by law enforcement units for law enforcement purposes are not considered “education records” under FERPA. • If you intend to handle surveillance video in this fashion, your school district should designate in writing which parties comprise your law enforcement unit (e.g., law enforcement, security guards, school administrators). • If your district decides to designate a law enforcement unit to monitor video, communicate the composition of the unit to parents and students, as part of your FERPA notice. • 34 CFR 99.8(d) - The Act neither requires nor prohibits the disclosure by an educational agency or institution of its law enforcement unit records.

3. FERPA – Video Surveillance • FERPA broadly defines “education records”to constitute "those records . . . which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution . . .." (20 U.S.C. § 1232g(a)(4)(A)). • 34 CFR 99.8(b)(2) states: • “Records of a law enforcement unit does not mean—(i) Records created by a law enforcement unit for a law enforcement purpose that are maintained by a component of the educational agency or institution other than the law enforcement unit; or • (ii) Records created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution.”

4. FERPA – Video Surveillance • Sharing video with parents: • If the video is being used as the basis for school discipline, then it should be treated as an education record. • The parents of the students directly involved in the incident may review the video, but school officials do not need to make a copy for them. • Parents of students who are just bystanders do not have permission to review the video without the written permission of the parents of the students who are the subject of the video. • The school does not have to blur the images of the students who are bystanders, but you might consider doing so if the student’s family opted the student out of providing directory information or if the video somehow would identify special education students.

5. FERPA – Open Records Requests • If law enforcement officials are using the video as part of an ongoing investigation, then the video may be protected under Iowa Code §22.7(5). “However, the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual.” (Iowa Code §22.7(5)) • Alternatively, the video may be confidential under Iowa Code §22.7(1), which protects: “Personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records.”

6. FERPA – Video Surveillance • The Family Policy Compliance Office, which oversees compliance with FERPA, shared with me that formal guidance on school video will follow in the near future.

7. FERPA – Emergencies • “. . . If the educational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals. . . .” (34 CFR 99.36(c)) (Adopted after Virginia Tech) • Possible scenarios: • (1) Threat made against a particular student. The school may communicate the identification of the student and nature of threat to the family of the target. • (2) Threat made against a broader group. The school may communicate whatever information from education records is helpful to protect individuals in the broader group. Perhaps the student had written a troubling story in a journal that would be helpful to share with others.

8. FERPA - Emergencies • “[I]f a teacher overhears a student making threatening remarks to other students, FERPA does not protect that information, and the teacher may disclose what he or she overheard to appropriate authorities.”Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Elementary and Secondary Schools (link) • As long as there is a rational basis for your decision to share information, even if it turns out that the student never carries out the threat, or the student was making an inappropriate joke or prank, the United States Department of Education will not substitute its judgment for that of school officials. (34 CFR 99.36(c))

9. FERPA – Surveillance Video and Emergencies ???????