By 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.