FERPA and Videos (March 2018 School Leader Update)
On Dec. 7, 2017, the U.S. Department of Education’s Privacy and Technical Assistance Center (PTAC) issued a letter (Letter to Wachter) regarding the Federal Educational Rights and Privacy Act (FERPA) and how it applies to a video involving multiple students.
The Issue in Wachter has come up in many districts in Iowa and it addresses the following questions.
- What do you do when you receive a request from a parent for a copy of a surveillance video of an incident?
- What do you do when you receive a request from a parent for a copy of statements that other students wrote regarding the incident?
In this case, the requester is the parent of the student who was involved in and was disciplined over the incident. The District administration captured the incident on video surveillance maintained by administration and does not have the capability to blur the faces of other students on the video. The District determined that the video and the witness statements are education records. Both were used to discipline the student.
PTAC found that both the video and the witness statements were “education records” of both the perpetrators and the targets under FERPA. FERPA requires the District to allow an individual parent of a student (or eligible student) who is disciplined for an incident to inspect and review education records upon request but does not require a district to release copies. PTAC also noted that this would apply to the targets of the incident as well. Thus, PTAC made the following conclusions.
- The District must provide the parents of the disciplined student (and the parents of the targeted students) with an opportunity to inspect and review the video so long as it cannot be segregated and redacted without destroying its meaning, even if the other parents or eligible students do not provide consent.
- In providing access to the witness statements the District must provide the parents of the disciplined student (and the parents of the targeted students) with an 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, even if the other parents or eligible students do not consent
PTAC discussed the interaction of FERPA and state “sunshine” laws, like Iowa Code chapter 22. According to PTAC, “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.”
As always you should contract your districts counsel if you have questions or concerns regarding similar situations in your District.