Students, FERPA and Videoptape

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Picture of Brad BanasikBy Brad Banasik, Legal Counsel
Michigan Association of School Boards

As a safety measure, many school districts have installed video cameras in school buses, buildings and parking lots. The cameras provide administrators with an extra set of eyes to deter and watch for unacceptable or illegal conduct. Another benefit of video cameras is the strong evidence they can preserve on tape for disciplinary decisions and liability claims.

However, when a school district uses video cameras, it may be
creating an “education record” that is subject to the requirements and
regulations of the Family Educational Rights and Privacy Act
(FERPA). If a surveillance videotape is found to be an “education
record,” then the disclosure of the recording to a parent of a student
appearing in the tape or to anyone in general could be restricted.
FERPA prohibits school districts from releasing personally identifiable
information (other than directory information ) contained in a
student’s education records to anyone but certain enumerated federal,
state, and local officials and institutions, unless authorized by the
student’s parent.

The question of whether surveillance videotape constitutes an
education record for a particular student is, unfortunately, not an
easy question for school districts to answer. Accordingly, this article
will attempt to clarify the issues involved in determining whether a
video recording qualifies as an education record and provide guidance
to school districts on the possible legal implications associated with
disclosing or withholding video recordings.

The Likely Scenario

A fight erupts in the high school cafeteria. The altercation, at
first, is limited to two students, but other students get involved
either as peacemakers or as additional aggressors in defending one of
the original combatants. In particular, most of the additional
participants include members of the football team because the
instigator of the fight is the high school’s starting quarterback. In
the aftermath of the altercation, the quarterback is suspended for five
days from school and prohibited from playing in the final two games of
the football season. His adversary was taken to the hospital for
treatment on cuts and a broken nose; he was suspended for two days. The
other members of the football team who were aggressors received the
same disciplinary treatment as the quarterback.

The altercation was recorded by four video cameras positioned in the
cafeteria. The recordings, which contain recognizable images of all the
students who were in the cafeteria, are stored on a CD-ROM disk. The
video system used by the school does not allow the recordings to be
edited or the video images to be altered for the purpose of ensuring
that footage can always be considered legitimate evidence.

In time, the school district receives several requests to view the
altercation or receive a copy of the CD-ROM disk. The parents of the
quarterback wish to view the footage to prove that their son was only
acting in self-defense. Several other parents are certain that the
video would show that the other football players were trying to break
up the fight, rather than teaming up on the other student. The parents
of the injured student are considering a civil lawsuit against the
quarterback and would like to have a copy of the disk for evidence. The
local police department would like to use the disk as evidence to
commence a criminal proceeding against the quarterback. And, of course,
the local newspaper would like to receive a copy of the disk for a
story on the disciplined football players.

Does FERPA permit the parents of the disciplined students to view or receive a copy of the CD-ROM disk? Does Michigan’s Freedom of Information Act
require the disk to be disclosed? The answers to these questions depend
on whether the disk is an “education record” under FERPA for the
identified students.

What is an “Education Record?”

As noted above, FERPA generally prohibits the disclosure to third parties of “personally identifiable”
information contained in “education records,” without the consent of a
parent or eligible student. The term “education records” is defined by
FERPA as all records, files documents and other materials containing
information directly related to a student; and maintained by the
education agency or institution, or by a person acting for such agency
or institution. This includes all records regardless of medium,
including, but not limited to, handwriting, videotape or audiotape,
electronic or computer files, film, print, microfilm, and microfiche.
“Personally identifiable” information includes, but is not limited to,
a list of personal characteristics that would make the student’s
identity easily traceable, or other information that would make the
student’s identity easily traceable.

Thus, without considering any of the five exceptions relating to the
definition of an education record, a surveillance videotape would
appear to constitute an education record if the images on the video
directly relate to specific students and it is maintained by the
school. And, if the video images personally identify individual
students, the disclosure of the videotape would, accordingly, be
restricted. However, varying and conflicting interpretations by the Family Policy Compliance Office (FPCO),
courts, and state attorney generals in regards to how the definition of
education records applies to surveillance videotapes complicate the
status of video images for purposes of complying with FERPA and state
public records laws.

The FPCO’s Original Interpretation

In Letter re: Berkeley School District, (hereinafter “Berkeley Letter”)
the FPCO concluded that a parent may only inspect a school videotape
showing his or her child engaged in misbehavior if no other students
are pictured. It stated in relevant part:

“If education records of a student contain information
on more than one student, the parent requesting access to education
records has the right to inspect and review, or be informed of, only
the information in the record directly related to his or her child….
If, on the other hand, another student is pictured fighting in the
videotape, you would not have the right to inspect and review that
portion of the videotape.”

Consequently, based on the Berkeley Letter, videotapes are education records for each student depicted in a video image.

The FPCO’s New Unofficial Interpretation

After issuing the Berkeley Letter, the FPCO has apparently provided
“informal advice” to attorneys and school districts on a case-by-case
basis in regards to questions about how the definition of education
records applies to surveillance videotapes. The new unofficial guidance
by the FPCO provides that video images are education records only for
the students “directly related” to the focus or subject of the video
(i.e., a fight, drug deal, or some other disturbance that causes the
students to be the focal point of the video). In other words, if a
camera captured an altercation, the resulting videotape would
constitute an education record for the students actively involved in
the altercation; other students in the background of the video, whether
walking down the hall, sitting on the bus, or eating lunch, would be
considered “set dressing” (not relevant to the incident) and their
images would not be covered by FERPA.

Additionally, the Texas Attorney General refers to the FPCO’s new
unpublished position in two opinions that address the disclosure of a
school’s surveillance videotape that includes footage of an
altercation. The opinions note:

[T]he Family Policy Compliance Office of the Department
of Education (“DOE”) has determined that videotapes of this type do not
constitute the education records of students who did not participate in
the altercation. The DOE has, however, determined that the images of
the students involved in the altercation do constitute the education
records of those students. Thus, FERPA does apply to the students
involved in the altercation. Further, DOE has determined that the
students involved in the altercation are directly related to each other
because of the altercation.

The opinions ultimately allowed the parent whose son was involved in
the altercation to review and inspect the videotape. While the
videotape included images of other students who were part of the focus
of the videotape as a result of their participation in the altercation,
the opinions determined that consent from their parents was unnecessary
for the review and inspection of the videotape because the students’
images were directly related to the requestor’s son.

Court Cases

In a 2005 case, a New York state court reached the conclusion that a
school district surveillance tape was not an education record within
the meaning of FERPA and, therefore, was subject to disclosure. In
deviating from the FPCO’s Berkeley Letter, the court based its decision
on the purpose of FERPA:

This Federal statute is intended to protect records
relating to an individual student’s performance. FERPA is not meant to
apply to records, such as the videotape in question which was recorded
to maintain the physical security and safety of the school building and
which does not pertain to the educational performance of the students
captured on this tape.

The court did refer to the FPCO’s Berkeley Letter, but determined
that, in this case, the student’s due process rights outweighed the
school district’s interest in protecting any claimed confidentiality on
the tape.

More recently, the Washington State Supreme Court ruled that a
videotape from a school bus surveillance camera was subject to public
disclosure under state law. In this case, the school district denied a
request by a parent to view the videotape on the basis that it was
exempt from disclosure under Washington’s Public Disclosure Act (PDA)
according to a student file exemption. Similar to FERPA, the student
file exemption protects the confidentiality of student records in
Washington by exempting from disclosure “[p]ersonal information in any
files maintained for students in public schools….”

In reaching its decision, the court limited the student file
exemption to only cover information that is both “personal” and
“maintained for students;” it then adopted the same line of reasoning
as the New York court by emphasizing that a surveillance camera
primarily serves as a means of maintaining security and safety on
school buses. Consequently, videotapes produced by a surveillance
camera are, in the court’s opinion, significantly different from the
types of records schools traditionally maintained in students’ personal
files, such as a student’s grades, standardized test results,
assessments, or class schedules.

Waiting for Clarification from the FPCO

School officials and school attorneys are anxiously waiting for the
FPCO to provide formal, written guidance on the status of school video
footage under FERPA. The National School Boards Association (NSBA) has
continued to press the FPCO to clarify its current position on how
FERPA’s definition of education records applies to surveillance
videotapes while considering state public records laws and the above
court cases. The fact that the FPCO has acknowledged that it is
currently working on formal guidance is, hopefully, a sign that school
districts will soon be able to rely on an official position from the
FPCO in handling public records requests for surveillance videotapes.

In the interim, some of the confusion over releasing and withholding
surveillance videotapes could be eliminated if the videos are created
and maintained in such a manner that they qualify as a recognized
exception to FERPA’s definition of education records. The exceptions
neither require nor prohibit the release of such exempted documents,
but allow schools to follow their own policies or applicable state law
in regards to their disclosure. Of the five exceptions, the one that
could apply to student images captured on videotape is the exception
for the records of law enforcement units.

The Law Enforcement Unit Exception

FERPA excludes from the definition of education records – and
thereby from the restrictions of FERPA – records that a law enforcement
unit of a school or school district creates and maintains for a law
enforcement purpose. A “law enforcement unit” is an individual, office,
department, division, or other component of a school district – such as
a unit of commissioned officers or noncommissioned security guards –
that is officially authorized or designated by the school district to
enforce any federal, state, or local law or maintain the physical
security and safety of the school.

FERPA narrowly defines a law enforcement record as a record that is
(1) created by the law enforcement unit, (2) for a law enforcement
purpose, and (3) maintained by the law enforcement unit. Thus, while a
school district can disclose, without student consent, student
education records to school law enforcement units under FERPA’s
exception for school officials with legitimate educational interests ,
these records are not thereby converted into law enforcement unit
records because the records were not created by the law enforcement
unit.

Maintaining Videotapes as Law Enforcement Records

If a school district wishes to exclude security videotapes from the
restrictions of FERPA, it should consider designating a department or
an individual to serve as the district’s law enforcement unit
responsible for controlling the surveillance cameras and maintaining
the resulting videotapes. As long as the videotapes are created for a
law enforcement purpose (i.e., maintaining the physical security and
safety of a school) and they remain in the possession of the law
enforcement unit, the videotapes constitute law enforcement, rather
than education, records.

The law enforcement unit’s responsibilities relating to law
enforcement records do not, however, prevent the designated individual
or department from also performing non-law enforcement unit functions
for the school district, including investigation of incidents or
conduct that constitutes or leads to a disciplinary action or
proceedings against the student. In the preamble to the FERPA
regulations published in the Federal Register, on January 17, 1995, the
U.S. Department of Education clarified further the status of records
created by an individual or a department responsible for performing law
enforcement and school related functions:

[W]here a law enforcement unit also performs non-law
enforcement functions, the records created and maintained by that unit
are considered law enforcement unit records, even where those records
were created for dual purposes (e.g. for both law enforcement and
disciplinary purposes). Only records that were created and maintained
by the unit exclusively for a non-law enforcement purpose will not be
considered records of a law enforcement unit.

Additionally, a law enforcement official may permit a school
official responsible for discipline to view a surveillance videotape
without risking the videotape’s status as a “law enforcement unit
record.” However, if a school official who is not a law enforcement
official receives a copy of the surveillance videotape, that videotape
becomes an education record subject to FERPA as a result of the copy
being maintained by a component of the school district that is not the
law enforcement unit.

A school district creating a law enforcement unit must have its
school board take action to establish the unit. Parents and students
should also be notified of which office or school official will serve
as the school’s law enforcement unit. This can be accomplished by
including the designation in a board policy, student handbook, or in
the school district’s annual notification to parents of their rights
under FERPA. Law enforcement unit officials who are employed by the
school district should also be designated as “school officials” with a
legitimate educational interest” in the FERPA notification in order for
them to receive personally identifiable information from student’s
education records.

Disclosing Law Enforcement Unit Records

Because law enforcement unit records are excluded from the
definition of educations records, schools may disclose information from
them to anyone without parental consent. The issue of whether a school
district must disclose records of a law enforcement unit is regulated
by section 13(1)(b) of Michigan’s Freedom of Information Act (FOIA).
Under this provision, a public body may exempt from disclosure
investigating records compiled for law enforcement purposes, but only
to the extent that disclosure as a public record would do any of the
following: “(i) interfere with law enforcement proceedings, (ii)
deprive a person of the right to a fair trial or impartial
administrative adjudication, or (iii) constitute an unwarranted
invasion of personal privacy.”

Further, the grounds for preventing the disclosure of records in
connection with an ongoing investigation include “fears of revealing
evidence, witnesses, prospective testimony, the transactions being
investigated, the direction of the investigation, governmental
strategy, prospective new defendants, and the scope and limits of the
government’s investigation.”

Conclusion

The hypothetical scenario at the beginning of the article provides
an example of the multiple issues involved in disclosing or withholding
surveillance video footage. The issues, however, are not quite as
complicated if the videotape is not education record under FERPA. If
the video was created and maintained by the school’s designated law
enforcement unit, then it could be disclosed to all the requesting
parties without worrying about consent from the parents of any of the
students directly involved in the altercation. If the school district
wanted to keep the disk confidential, it would have to establish
“particularized justification” for withholding the disk pursuant to
section 13(1)(b) of FOIA. Thus, the disk would have to qualify as an
investigatory record, and then the district would have the burden of
proof to show that its disclosure would interfere with law enforcement
proceedings, deprive a person of the right to a fair trial, or
constitute an unwarranted invasion of privacy for the students who are
shown on the video.

If the disk does not qualify as a record of a law enforcement unit,
then the district must determine if the disk amounts to an education
record for the students who images are captured on the video. Clearly,
under guidance formally issued by the FPCO, the disk would be a record
for the quarterback, the injured student, and the football players
involved in the altercation. However, under a strict interpretation of
the Berkeley Letter, the parents of these students could only view the
tape if all of the parents consented to the disclosure. In this case,
redacting portions of the tape is not an option because the school’s
video system was rendered intentionally un-editable, but it could be an
expensive and time consuming option for a school district that uses an
editable video system.

The district could seek additional clarification from the FPCO in
regards to disclosing the disk without consent to the parents of the
students directly involved in the altercation. As mentioned above, the
FPCO has provided “informal advice” to school officials that goes
beyond the Berkeley Letter in relation to two issues: (1) a videotape
that shows students in the background of an altercation or any other
event is not an education record for those students, and (2) if
multiple students are the focal point of an event captured on video, a
school would not need to obtain consent of the parents of the students
to show all the parents the video because the involved students are
directly related to each other as a result of the event. However, under
the unwritten guidance, the school may not give a copy of the video to
any of the parents without consent from the involved students’ parents.
Thus, in the scenario, the parents of all the students involved in the
altercation could view the disk in the absence of consent from the
students’ parents, but the lack of consent would prohibit the district
from copying and releasing the disk to any of the parents. This result
would prohibit the parents of the injured students from a receiving a
copy of the disk for evidence in pursuing a civil lawsuit against the
quarterback.

In regards to the media’s request for a copy of the disk, the FPCO’s
position appears to be that the parents of the quarterback, the injured
student, and the other football players have to provide unanimous
consent before a copy of the disk is released.

The local police department in the scenario would likely have to
issue a subpoena in order to receive a copy of the disk for commencing
a criminal proceeding. This would then require the district to make
reasonable efforts to notify the students’ parents of the subpoena in
advance of complying with it.

This article probably raises more questions than answers. Hopefully,
answers to these questions may be coming in the form of written
guidance from the FPCO. NSBA and MASB will continue to monitor the
FPCO’s formally issued policy guidance and will inform Michigan school
officials when that guidance provides additional clarification on the
status of school video footage under FERPA.

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