The Family Policy Compliance Office is the division of the US Department of Education tasked with enforcing the Family Education Rights and Privacy Act. For years FPCO has issued confusing and contradictory guidance on just what schools may or should do with photographs and videos of students. FPCO has now issued a new FAQ guidance document clarifying what that office believes a district should do when a photo or video is an education record for multiple students. The easiest example of a video which is an education record for multiple students is a video of two students fighting. Obviously the video will include more than one student, and will constitute an education record. So can the district disclose the video to both sets of parents? Can one set of parents claim that the video is protected by FERPA and can’t be disclosed? What about the students who are standing around watching the fight? The new FPCO guidance covers these questions and addresses how photos or videos become education records, how FERPA impacts a district’s response to requests from parents to view or get copies of those records, and how FERPA intersects with state law.
Generally, a photo or video of a student is an education record when it is directly related to a student and maintained by an educational agency or institution. So when is a photo or video “directly related” to a student? The FPCO has taken the position that this is a decision that schools must make on a case-by-case basis. The factors the school should consider include:
- Was the picture or video used for disciplinary action?
- Does the picture or video show a violation of any law?
- Does the picture or video show a student being injured, attacked, having a health emergency, or being victimized in any way?
- Did the person who took the picture or video intend to make a specific student the focus of the picture or video?
- Does the picture or video contain personally identifiable information that is contained in the student’s education record?
The FPCO gave specific guidance on pictures and videos that include a multitude of students:
“A photo or video should not be considered directly related to a student in the absence of these factors and if the student’s image is incidental or captured only as part of the background, or if a student is shown participating in school activities that are open to the public and without a specific focus on any individual.”
Viewing the Picture or Video
If a video is an education record for multiple students, as in cases where students are fighting, FERPA requires the district to allow parents of each student for whom the video is an education record to view the video. Before you show the parents of one student a video, you are required to redact the video to cut out other students if you can do so without destroying the record itself. In previous guidance from the Department of Education (which you can read here), the Department advised that since a district could not blur the faces of some students involved in a fight without costly software, and the meaning of the video would likely be lost if they tried, they should show the entire video to the parents of all students involved. In most cases, this means that parents of both students may review the video of two students fighting, even if the parents of the other student object to that review.
Parents frequently ask for copies of student videos. Even when the video is an education record for multiple students, FERPA does not prohibit the release of copies of the video to inquiring parents. The FPCO guidance specifically states that the district may release copies to the parent of one of the students in a video without the consent of the parents of the other. Nebraska state law requires districts to provide copies of education records if parents request them and pay reasonable copying fees under NEB. REV. STAT § 79-2,104. Please note: the district CANNOT charge parents for the cost of redacting or editing a video and if the parent cannot afford the fee, that cannot prevent a parent from obtaining a copy of the record.
Education Records and Law Enforcement
It’s important to note that FERPA excludes pictures and videos created and maintained by law enforcement from education records. If your district has a resource office that is equipped with a body-worn camera, the video taken on the camera will be a law enforcement record unless disclosed to the district, and subsequently maintained by the district. You should review any memorandum of understanding or contract your district has with the local police department or city to make sure this is made clear in the document.
If a picture or video is identified as an education record of a student, it can only be disclosed with consent from the parents, or if the disclosure falls into a FERPA exception. This includes disclosures to law enforcement. If there is an emergency that threatens the health and safety of students, schools may disclose security and other video without notice to and consent from parents. If law enforcement requests a copy of education records and there is no emergency, the district should either obtain consent from parents or ask law enforcement to provide the district with a subpoena or court order that requires the disclosure.
Districts have an obligation to maintain the confidentiality of education records. However, if one video is an education record for multiple students and it cannot be redacted or segregated, the parents of all students involved may view and request copies of the record. If you have any questions about your district’s obligations to students and parents regarding education records, or questions about how FERPA applies to pictures and videos, we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.