by Maureen Anichini Lemon (Summer 2018)

Parents frequently ask to view photos or videos of school incidents involving their child. On April 19, 2018, the Family Policy Compliance Office (FPCO) of the U.S. Department of Education issued a guidance entitled “Frequently Asked Questions on Photos and Videos.” The guidance clarifies how schools should respond to such requests under the Family Educational Rights and Privacy Act (“FERPA”).

As with any other record, a photo or video of a student is an ‘educational’ record, subject to specific exclusions under FERPA, when the photo or video is (1) directly related to a student, and (2) maintained by a school district or by a party acting for the school district. (20 U.S.C. 1232g(a)(4)(A); 34 CFR §99.3). FERPA regulations do not define when a record is ‘directly related’ to a student. The guidance indicates that whether a visual representation of a student is directly related to a student is context-specific and should be determined on a case by case basis. Factors to be considered in this determination include:

  • The school uses the photo or video for disciplinary action or other official purposes involving the student;
  • The photo or video contains a depiction of an activity that:
  • Resulted in or would reasonably result in a school’s use of the photo/video for disciplinary actions involving a student;

  • Shows a student violating a local, state, or federal law; or

  • Shows a student getting injured, attacked, victimized, ill or having a health emergency;

  • The person taking the photo/video intends to make a specific student the focus of the photo or video; or
  • The audio or visual content of the photo/video otherwise contains personally identifiable information contained in a student’s educational record.

According to the guidance, 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 only incidental or part of the background. The guidance notes the following examples of situations in which a record is ‘directly related’ to a specific student:

  • A school surveillance video showing two students fighting in a hallway, which is used as part of a disciplinary action.
  • A classroom video that shows a student having a seizure.
  • A video recording of a faculty meeting during which a specific student’s grades are being discussed.

To be governed by FERPA, a photo/video directly related to a specific student must also be maintained by the school. Thus, a photo or video taken by a parent at a basketball game would not be an educational record even if it is directly related to a specific student. By contrast, a close-up photo taken by the school of two or three students playing in that basketball game would be governed by FERPA because the photo is both related to specific students and is maintained by the school.

The FPCO guidance notes that records created and maintained by a law enforcement unit of an educational agency or for law enforcement purposes are excluded from the definition of an educational record. Such a law enforcement video may become a student record if the video is shared with non-law enforcement administrators of the school, is directly related to a specific student, and is maintained by the school.

This is consistent with how the Illinois School Student Records Act (“ISSRA”) treats records created and maintained by law enforcement professionals working in the school, or for security or safety reasons or purposes. The Illinois State Board of Education rules governing school student records excludes those records, as well as electronic recordings made on school buses, from the definition of a ‘school student record.’ (23 Ill. Admn. Code §375.10). The ISBE rules do note that the content of such videos or electronic recording may become part of a school student record to the extent school officials use and maintain the content for a particular reason (e.g., disciplinary action, compliance with a student’s Individualized Education Program) regarding that specific student.

What happens if a recorded image is the educational record of two or more students? If one student is harming another student, the video maintained by the school is an educational record for both students. If the parents of one of the students asks to inspect/review the video, the FPCO guidance recommends schools ‘redact or segregate out’ the portions of the video directly related to other students if such redaction or segregation can reasonably be done without destroying the meaning of the record. If such redaction or segregation of the video cannot reasonably be accomplished, or if doing so would destroy the meaning of the video, then the parents of each student to whom the video directly relates would have a right under FERPA to view / inspect the entire video even though it directly relates to other students.

In support of this conclusion, the guidance cites Letter to Wachter, a December 2017 correspondence from the U.S. Department of Education Office of the Chief Privacy Officer. That letter responded to a request for clarification regarding a surveillance video maintained by a school depicting a hazing incident of two high school football players by six teammates. Additionally, the video depicted multiple innocent bystanders. The surveillance video was maintained by the school administration and not by the school’s law enforcement unit.

The requester asked whether FERPA permitted parents of any of the football players to observe the video. The U.S. Department of Education accepted the school’s assertion that it could not afford software that would blur the faces of the other students in the video. The Letter to Wachter agreed that a parent could see a greater portion of the video if the information specific to his/her own child cannot be segregated or redacted without destroying the video’s meaning.

While FERPA requires a school district to allow a parent to inspect and review their child’s educational records upon request, FERPA does not require school districts to release copies of such records. We recommend that schools not provide a copy of a photo or video that is an educational record of a specific student unless that student is the only student depicted in the video.

If you have any questions regarding the legality of your school district’s procedures relating to the viewing and/or release of photos and videos, please contact an Ottosen Britz attorney.