Schools are deeply invested in keeping their students safe. In light of growing public concerns about overall school safety, both state and federal officials have recently suggested that Nebraska educators use a provision of FERPA to bypass some confidentiality concerns when they are sharing information with members of law enforcement. Both the Final Report of the Federal Commission on School Safety, released on December 18th, 2018 (which we blogged about earlier) and the Nebraska Attorney General have encouraged schools to consider using the “law enforcement unit” exemption to the Family Educational Rights and Privacy Act of 1974 (FERPA) to allow the disclosure of safety and security information to third party officials.
The Law Enforcement Unit Exemption
Generally speaking, FERPA requires parental consent prior to the disclosure of a student’s personally identifiable information contained in education records. FERPA defines the term education record as “records, files, documents, and other materials” that “contain information directly related to a student” and are “maintained by an education agency or institution.” 20 U.S.C. § 1232g(a)(4). However, “records of the law enforcement unit of an educational agency or institution” are not included within the meaning of “education record.” 34 C.F.R. § 99.31. Law enforcement unit records are an exemption to FERPA coverage altogether, not an exception to disclosure. Consequently, the provisions of FERPA do not restrict the disclosure of law enforcement unit records at all. Keep this “exemption” separate in your mind from the health and safety “exception” you already use to disclose education records to local police in cases of emergency.
As at least one tool for addressing crisis situations, the School Safety report noted that school districts may designate any office or individual as its “law enforcement unit” and disclose records which qualify as law enforcement unit records to other entities (like local police departments) at the school’s discretion. For example, a school district could appoint its principal as the law enforcement unit, and delegate to that “unit” the responsibility for administering the school’s video surveillance system for purposes of maintaining safety and security. That footage may then be disclosed without consent or an exception to consent as a “law enforcement unit” record not covered by FERPA.
If a school has designated a record under the “law enforcement unit” exemption, it cannot use the same record as a student record for discipline or special education purposes. However, if the school makes a copy of the “law enforcement unit” record and uses it for educational purposes, that copy of the record is protected by FERPA. Even in those cases, though, the original record does not lose its status as a law enforcement unit record.
It’s easiest to understand the law enforcement unit exemption by way of example. Let’s say fist fight breaks out in a school hallway. Your principal is your “law enforcement unit,” and is also the person responsible for student discipline. As she reviews the security footage, she realizes that a short segment of the footage captured the fight clearly. As the “law enforcement unit,” the principal could immediately disclose a copy of the raw footage to the police. If the principal then chooses to expel the student who started the fight, she could make a copy of the same footage to use in the discipline matter. The original video footage which the principal released to the police is not a student record. Instead it is a record of a law enforcement unit. The copy of the video even though it is a copy of exactly the same footage does become a FERPA-protected education record when the principal decides to use it for a separate school purpose.
Now, before you run to designate a principal or an SRO as your “law enforcement unit,” beware. There are many issues you will want to consider before using the “law enforcement unit” exemption to avoid all those difficult discussions with police about having to get a warrant or subpoena. As an initial matter, you will need to have your board of education amend your records policies. You will need to provide notice to parents of your “law enforcement unit” designation. Once you have made this distinction, you invite other problems, such as the application of state public records laws. For example, if the local TV station wants footage of the fistfight in the example above, the school would likely have to release a copy of the “law enforcement unit record” copy of the video (even if it is identical to footage kept in the student’s file). In our view, there are pretty significant tradeoffs to establishing a law enforcement unit and keeping those records exempted from FERPA coverage.
The Application of State Law
Like FERPA, Neb. Rev. Stat. § 79-2,104 limits access to students’ school files or records. The statute protects against the unauthorized disclosure of a “school’s files or records maintained concerning such student” but does not define that phrase. Understanding that Nebraska schools must comply with both federal and state record laws, the Nebraska Department of Education sought further clarification from the Nebraska Attorney General regarding the use of the law enforcement unit exemption by Nebraska schools.
In response, the Attorney General’s office released an opinion (available here) that ameliorated some of our concerns and affirmed that it also interprets FERPA and the state student record laws as permitting the disclosure of law enforcement unit records at the discretion of the school. While the opinion did not specifically address our concerns with the interaction between the exemption and section 79-2,104, the opinion did not raise any issues with such disclosures under state record laws. Further, the statutory language of section 79-2,104 makes clear that the legislature intended the law to parallel the protections of FERPA.
While some uncertainty remains regarding the use of the law enforcement exemption by Nebraska schools, both the Nebraska Attorney General and the President’s Commission on School Safety have found that the exemption may operate as a means for districts to share more information with local law enforcement. The application of the exemption is dependent upon several conditions that must be met, and practically requires that the law enforcement unit records be maintained apart from the district’s protected education records. If your school is interested in appointing a law enforcement unit in order to utilize the exemption, we encourage you to contact your school’s attorney, or call Karen, Steve, Bobby, Coady, or Mandy.