What do you do when a parent asks for a copy of video surveillance depicting an incident on campus when the video contains images of both innocent bystanders, as well as the students involved? Is the video an education record of each of the students and is the school district permitted to release the video to a parent of an involved student, or is consent of the students in the video required? According to guidance issued by the U.S. Department of Education, privacy rights under the Family Educational Rights and Privacy Act (FERPA) come into play in these types of scenarios.
FERPA is a privacy law that protects the privacy of student education records and personally identifiable information of students. Education records are defined as records that are: (1) directly related to a student, and (2) maintained by an educational agency or by a party acting for the agency. FERPA affords parents and eligible students the right to have access to their education records, the right to seek to have their records amended, and the right to have some control over the disclosure of personally identifiable information. Eligible students are those who are 18 years old or attending postsecondary school at any age. FERPA prohibits an educational agency from disclosing student education records or personally identifiable information without prior, written consent from the parent or eligible student, unless an exception applies. The most common exceptions include disclosure to (1) school officials with a legitimate interest in the information, (2) another school in which the student seeks or intends to enroll, and (3) directory information.
According to the DOE, the following may guide decision-making on the release of video surveillance and witness statements of a discipline incident:
- When video surveillance and witness statements (1) are maintained by school administration in the students’ discipline files (as opposed to being maintained by law enforcement), (2) are directly related to the disciplinary incident, and (3) are used in the disciplinary action, video surveillance and witness statements are education records of the students disciplined and any student victims. They are not considered education records of uninvolved, innocent student bystanders.
- FERPA requires districts to allow an individual parent of a student who was disciplined for an incident depicted in a video or contained in a written statement to inspect and review his or her child’s education records upon request but generally does not require the district to release copies of the material.
- When an education record contains information on more than one student, the parent may inspect and review or “be informed of” only the specific information about his or her own child, unless the information about the other student or students cannot be segregated and redacted without destroying its meaning. For example, if the parent of student M. wants to look at a witness statement of an incident involving student M. and student P., the school can disclose the portion of the statement regarding students M. and P. without redaction. However, any other part of the statement referencing other students that did not involve student M. would have to be redacted or otherwise withheld.
In providing access to video surveillance, the district must provide parents of a disciplined student with the opportunity to inspect and review the video, so long as the video cannot be segregated and redacted without destroying its meaning. For example, if the district does not have the technology to edit the video or blur the faces of innocent bystanders, the district may allow the parent to view the video. However, if it is possible for the district to disclose only a portion of the video in a way that would fully depict the student’s involvement, then such segregation of information about other students would be required.
- In providing access to witness statements, the district similarly must provide the parents of a disciplined student with the opportunity to inspect and review those portions of the witness statements that are about the disciplined student and other students if they cannot be segregated or redacted without destroying their meaning. For example, the name of the student authoring the witness statement may be redacted without destroying the meaning of that witness statement. Thus, if it is possible to redact the witness statements or disclose only a portion of the witness statements in a way that would fully depict the student’s involvement, then redaction is required. The district may still need to obtain consent of the student witness before disclosure.
This DOE guidance provides a basic legal framework for complying with FERPA when faced with a parent request to view video surveillance or witness statements of an incident on campus. However, every case is different and care should be used before disclosing this type of information. When in doubt, get consent from the parents of the other students involved and contact legal counsel.