Under the Family Educational Rights and Privacy Act (FERPA), students have certain privacy rights regarding their educational records. This includes the right to control the disclosure of records containing personally identifiable information (“PII”). However, when it comes to video recordings depicting students, the balance between privacy rights and the need for safety can be challenging. Adding to the challenge is that FERPA does not specifically address video recordings. Therefore, we are left to bend and shape existing regulations and opinions from various sources, none of which are binding. As you can imagine (or may have experienced), this gap in an otherwise heavily regulated area of education has led to confusion and hesitance among school leaders.
Determining When a Video Recording is an Education Record Generally, the classification of something as an “education record” hinges on two questions: (1) does it directly relate to the student? and (2) is it maintained by an educational agency or institution or by a party acting for the agency or institution? The concepts themselves are simple enough, but the application is immediately complicated by the fact that “directly related” is not defined in the FERPA regulations. The U.S. Department of Education released an FAQ on the topic, and provided the following factors to help determine if a photo or video should be considered “directly related:”
- Are you (the school) using the recording for disciplinary action?
- Does the recording depict evidence that a student violated a school policy or a law?
- Does the recording depict a student being victimized or having a health emergency?
- Is a specific student the intended focus of the recording? (e.g., student presentation)
If one of these factors exists, clearly consider the recording part of the applicable student’s education record.
When Uninvolved Students are Captured Rarely do schools find themselves in a situation that is as straightforward as the examples illustrated above. Most of the time, video recordings capture hallways, lunchrooms and buses full of students. But what about the students that aren’t the primary actor in the video. For example, if your video surveillance of the cafeteria captures three students fighting, that recording is most certainly directly related to the three students who engaged in the fight and should be considered part of the three students’ education records. But what about the (potentially hundreds of) other students who are captured in that video? You could take the position that FERPA does not protect those “other” students. Doing so could make the video much easier to disclose without consent or applying a FERPA exception. On the other hand, not considering the FERPA protection broadly would result in countless hours, days, weeks, months and even years of school surveillance video being subject to public record requests.
Parent Inspection Once a video is determined to be part of a student’s education record, the parent’s (or eligible student’s) right to inspect, review, or to “be informed” of the content of the video is triggered (see 20 U.S.C. § 1232g(a)(1)(A)). This is where things can get more difficult. According to U.S. DOE Guidance, a school’s responsibility to redact or blur other students varies depending on whether the video “directly relates” to the other students or if the other students are incidentally captured. The DOE advises that if the school can reasonably redact or segregate out the portions of the video directly related to other students, without destroying the meaning of the record, then the school is required to do so prior to providing the parent or eligible student with access.
But, again, we suggest considering all students depicted as having FERPA protections Not doing so could result in a lot of requests and even more blurring of images. Instead, we suggest only providing access to a video depicting numerous students to the family of a student depicted in the video and the video is being used as evidence to support a recommendation for out-of-school suspension or expulsion. This situation demonstrates the balance between the right of access to a student’s records outweighing the right of privacy, particularly when removal from school is at issue. Also note that there are several other exceptions that could permit disclosure of a video, including consent from all families of students depicted, when necessary to protect against imminent injury and compliance with a subpoena (after opportunity to quash the subpoena has been provided).
Policy Recommendations The gap in FERPA’s application to video surveillance amplifies the importance of your local approach to policy. When developing your policy, keep in mind that nothing in FERPA requires the school to provide the parent or eligible student with a copy of the information. Additionally, be consistent with your determination of whether you will take a conservative application of FERPA protection as we suggest, or the less conservative approach taken by US D.O.E.
Conclusion Video recordings can be a useful and often necessary tool for educational purposes, but schools must ensure that they comply with FERPA when using video recordings and take steps to protect the privacy and security of students’ education records. Be sure to review each situation on a case-by-case basis and reach out to the KGR Legal Help Desk if you would like to talk through one of those cases.
Navigating state and federal regulations can be challenging. For more information, contact the KGR Education Law and Public Policy team.