School security cameras have become ubiquitous and they can be extremely helpful when administrators are investigating allegations of student misconduct. But can parents demand to review video footage that includes more than just their student? What rights to parents have to prevent others from reviewing video footage of their child? Recently, the US Department of Education provided guidance to a school district struggling with the conflicting FERPA obligations that arose when a parent requests records containing information about both the parent’s child and another student.
Conflicting Obligations
The Family Educational Rights and Privacy Act (FERPA) imposes obligations on school districts to maintain confidentiality of personally identifiable information contained in educational records. FERPA broadly defines “educational records” to include records directly related to a student maintained by an educational agency or institution. FERPA also requires schools to provide access to educational records to parents and eligible students.
When incidents take place involving multiple students, information and evidence, such as a surveillance video or witness statements, likely constitute educational records for purposes of FERPA. This information often pertains to multiple students. These documents would be educational records for each student to whom they directly relate. Such circumstances invoke conflicting obligations; the school is simultaneously obligated to meet the confidentiality requirements of FERPA, while also meeting the duty to provide access to the records. In an informative letter you can download here, the Department of Education outlined how a school should handle the release of information about an incident involving multiple students.
Letter to Wachter
Earlier this year, the Wattsburg, Pennsylvania Area School district sought guidance in addressing document access requests that created conflicting obligations under FERPA. The requested records included surveillance video and witness statements related to a hazing incident involving eight students. The video also contained footage of several students not directly involved with the incident. Both the video and the witness statements were maintained by the district, and, therefore, were educational records.
The district was unable to provide access to the records without also providing personally identifiable information about another student. FERPA provides that when education records contain information on more than one student, the parent may inspect, review, or obtain information related only to 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. In the letter, the Department of Education cited the following example.
“For example, parents of both John and Michael would have a right to inspect and review the following information in a witness statement maintained by their school district because it is directly related to both students: ‘John grabbed Michael's backpack and hit him over the head with it.’ Further, in this example, before allowing Michael's parents to inspect and review the statement, the district must also redact any information about John (or any other student) that is not directly related to Michael, such as: ‘John also punched Steven in the stomach and took his gloves.’”
Letter to Wachter (Dep. Of Ed. 2017). Applying these principles to the request at hand, the letter advised the school to provide the requesting party with the witness statements, so long as the district redacted the statements to the maximum extent possible without destroying the meaning of the information.
In regards to the surveillance video, the department noted that the school was unable to blur the faces of the individuals in the video without expensive software. Further, the Department noted that the video was unlikely to be segregated without destroying its meaning. In light of this, the Department advised the school to allow the parents to view the video in its entirety.
Viewing Videos vs Requesting Copies
FERPA is a federal law, and it provides parents with the right to review but not necessarily to receive copies of education records. However, under Nebraska state law, schools must provide copies of student records if parents request them and pay reasonable copying fees. Neb. Rev. Stat. 79-2,104. In Letter to Wachter, FPCO clarified that if a parent is entitled to review records under FERPA, the school can also provide copies to the parent: “It would not violate FERPA for the District non-consensually to disclose to an eligible student or his or her parents copies of education records that the eligible student or his or her parents otherwise would have the right to inspect and review under FERPA.” In Nebraska, that means that parents who request copies of videos that are education records of their student get those copies, even if other students are depicted in the video.
Conclusion
Under FERPA, schools have an obligation to maintain the confidentiality of educational records. When a parent or eligible student requests a record, and that record contains information related to more than one student, FERPA requires that the school redact or segregate the information to the maximum extent possible. However, if the information cannot be segregated or redacted without destroying its meaning, it can be provided. If you have any questions about your obligations under FERPA, or anything else, we recommend you contact your school attorney, or call Steve, Karen, Bobby, or Tim.