Recent state and federal guidance confirms that districts can release many types of information about students when responding to school-safety concerns or handling student disciplinary actions without violating the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 C.F.R. Part 99 (“FERPA”).
Releasing Information in Response to School-Safety Concerns
The Colorado Attorney General recently advised in Formal Opinion 18-01 (issued Jan. 11, 2018) that districts should err on the side of school safety when determining what student information to release when proactively responding to safety concerns.
The guidance clarifies that student information relevant to safety concerns may not qualify as “education records” as defined by FERPA, and thus can be shared without parental consent, including:
- observations and other personal knowledge about a student’s behavior;
- reports about a student from friends or peers;
- threats of violence or other information shared on social media; and
- records created and kept by school security personnel.
Even “education records” under FERPA can be disclosed in some circumstances to ensure school safety. For instance, information in education records can be disclosed to school officials who have a “legitimate educational interest” in that information. The Colorado AG encourages districts not to narrowly interpret the definition of “school officials” and “legitimate educational interest” so as to facilitate the disclosure of information to persons carrying out school-safety functions.
In addition, school officials can disclose information from students’ education records to aid the response to a safety emergency. The Colorado AG suggests that when emergencies arise, regulators will defer to the reasonable judgment of educators confronted with potential safety risks in deciding whether school officials needed to disclose student information under FERPA.
Releasing Footage of Misconduct
The Colorado AG’s guidance arrives on the heels of confirmation from the U.S. Department of Education that video footage of student misconduct can, under certain circumstances, qualify as an “education record” under FERPA and be released without consent of parents of students pictured in the video.
In a response to an inquiry from a Pennsylvania school district, the Department advised that video footage of a hazing incident qualified as an “education record” of the students disciplined for that incident under FERPA because the footage directly related to the hazing and is maintained by the school administration in the students’ disciplinary files.
The Department concluded that the district could release unredacted footage of the incident without parental consent in this particular case because “it did not appear … that the information in the video can be segregated or redacted without destroying its meaning,” noting that the district “cannot afford software that would blur the faces of the other students in the video” and the district could not “segregate the video by showing parents or eligible students a distinct time period of the video in order to portray [a] student’s singular involvement in the hazing incident.” The Department cautioned that if districts can meaningfully disclose only a portion of the video showing a student’s involvement, then districts are required to take steps to do so.
This interpretive guidance follows the Department’s prior guidance that a parent or eligible student has the right to inspect and review witness statements directly related to a student, even if that statement contains information also directly related to another student, if the district cannot redact or alter the statement without destroying its meaning. See 73 Fed. Reg. 74806, 74832 (Dec. 9, 2008).
Further Discussion at CASE Winter Leadership Conference
Although this guidance from federal and state authorities promotes the right of school officials to release many types of student information in response to safety concerns and disciplinary actions without violating FERPA, districts are encouraged to continue to seek legal advice to know when student information can be shared.
We look forward to discussing this guidance further at the upcoming Colorado Association of School Executives Winter Leadership Conference. In the meantime, you can find a copy of the Colorado Attorney General’s guidance here and a copy of the Department of Education’s guidance here.
Please contact Kristin Edgar, Coulter Bump, and Elliott Hood for more information.