This past April, the United States Department of Education provided clarification as to when a video or photo constitutes an education record under the Family Educational Rights and Privacy Act (FERPA.)
In its informal guidance, the Department noted that photos or videos should be reviewed on the same basis as any other record to determine (1) if it directly related to the student in question and (2) if it is being maintained by the educational entity. If the answer to both of those questions is yes, it is an educational record subject to FERPA.
First, while acknowledging that FERPA does not define the term directly related, the guidance suggests a more limited definition of the same than has been suggested in prior court cases when it comes to videos and photos.
The guidance indicates that it is directly related to the student if it is used for discipline purposes, shows the student getting hurt or injured, or shows the student violating the law or the school code of conduct.
But the guidance explicitly excludes photos or videos where the student is only in the background or if the student is participating in an activity open to the public.
As a result, the guidance suggests a focus on whether the student in question is the focus of the photo or video or is just in the background to determine if it is directly related.
Second, in terms of maintainance, the guidance issued is very clear that the question is whether the education entity maintains the item and if the photo or video is maintained by someone else, than it is not maintained by the district. However, if the district or educational entity gets a copy of the photo or video, then the copy likely is maintained by the educational entity.
In addition, the guidance reminds school districts that if it has a law enforcement department information that is only used by that department, including photos or videos, are not educational records.
However, if copies of the same are shared with other departments within the educational entity, including for discipline purposes, then the copy is an education record.
Bottom Line for Schools
As a result of the guidance, school entities should carefully review any policies or procedures they have about collection of students by photos or video to determine if in fact they are creating educational records and, if so, whether the school entity wants to be doing so. In addition, when responding to FERPA requests school entities should carefully review such items to determine if they fit within the definition of educational records as specified by the new guidance.
The new guidance also offers some grounds for schools to resist the occasional overwrought insistence by parents that their child’s photograph be redacted from even group pictures.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.