Season 3: Episode 2: Hand Over that Fight Video!

Student privacy can certainly be tricky in this era of rapidly-developing technology. It seems like everyone has privacy rights under the Family Education Rights and Privacy Act (FERPA) these days, but sometimes these rights and obligations collide. For example, what if parents request a video recording of their child, but the clip includes footage of other students as well? Are districts obligated to redact video footage? Doesn’t that get expensive? Joined once more by Peter Zawadski, an attorney at Walter | Haverfield, Lisa and Miriam review FERPA basics and discuss updated guidance from the Family Policy Compliance Office. This topic is a follow-up to the issues raised in Episode 12 of Season 1.

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Lisa: Welcome back to Class Act: Updates and Education Law. I’m Lisa.

Miriam: I’m Miriam.

Lisa: We are attorneys at Walter | Haverfield in Cleveland, Ohio. We practice school law and every few weeks we get together to talk about the most recent legal developments in education relevant to school boards, teachers, administrators, really anyone who works in schools. Today we’re going to continue our conversation about technology and its impact in schools. Last episode, we talked about recording devices and today we’re going to look at video footage. Once again, we have Peter Zawadski joining us. Welcome, Peter!

Peter: Glad to be here! Thank you.

Lisa: Peter is another attorney in our firm who also advises school districts about technology and other education issues. So welcome.

Peter: Thank you.

Miriam: So, Peter, we talked a little bit about student privacy as it relates to videos back in our first season. Quite a while ago, and some of our earlier listeners might remember that. We touched upon this topic back in 2017 Episode 12, I think it was. In that episode, we talked a little bit about what school districts should do if parents request video footage that the district kept for one reason or another, and the video footage contains images of other kids. The question was, should the school district hand over the video clip? Let’s say if it’s a cafeteria fight or something similar, should the district handed over to the requesting parent even though it would contain possibly a student record for another child? Or does that violate that child’s privacy rights? Interestingly, shortly after we recorded that episode, the Family Policy Compliance Office, the FPCO, which is the agency that enforces student privacy rights under FERPA, they came out with guidance on that very issue several months after we recorded that episode. We wanted to update our audience about this recent guidance and talk to Peter about implications for school districts. I’m getting a little bit ahead of myself, I think though. Peter, can you just before we talk about this guidance? Can you remind our audience what FERPA is and how it relates to school districts who have to respond to parent requests for records?

Peter: FERPA its federal law that conditions federal funding that’s given to schools on two things, protecting education records from impermissible disclosure, and ensuring that parents and eligible students who are over 18 are able to inspect and access their educational records.

Miriam: I think that those two pieces of FERPA sometimes our intention with each other, sometimes may conflict with each other you don’t want to disclose anything impermissibly but you also have to make sure that a parent has access to their child’s education record. In this situation where you have one record, let’s say a video clip that has student records for multiple kids, those two provisions of federal privacy law of FERPA may conflict with each other. That’s what we’re talking about here.

Lisa: Why don’t we clarify for our listeners what we mean by education record, especially as related to FERPA.

Peter: What is interesting is an educational record under FERPA is almost anything as long as it’s directly related to a student and maintained by that educational agency, institution, school district. It could be a file, it could be a grade report documents, any material, recording.

Lisa: Those two components of it being directly related to the student and maintained by the school are significant. I think we do get some questions sometimes about whether or not a record is being maintained.

Peter: Right. Not every recording that’s conducted within the school is going to be an educational record that’s protected under FERPA. It has to be something that relates directly to a student and it’s also maintained by the school.

Miriam: I think that videos are especially interesting because if you just have a document, a report something that’s in writing, it’s fairly easy for districts to redact another child’s name and then you can provide that document and comply with both parts of FERPA. You can protect that record from impermissible disclosure to a parent by redacting. Then you can ensure that the parent of the child whose requesting it has access by providing that record because it’s fairly easy to redact a videos. It’s much more complicated redacting videos. It’s possible but technology has not yet developed to the point where redacting videos is as easy as redacting documents. I think that’s where the challenge that we’re going to talk about today comes up.

Lisa: By redaction, we mean basically removing the private information that the person getting the record is not entitled to or that would violate the privacy rights,

Peter: In the video context redacting would be blurring the image of the student’s face.

Miriam: Alright, so let’s take a look at a fairly common example. Let’s say Jimmy’s mom complains to the principal that her son little Jimmy is being bullied on the bus and she requests a copy of the video footage from the bus because many school districts now have cameras on buses. She says, “I want a copy of the video footage because my child’s being bullied. He’s being harassed.” The principal is sometimes unclear about whether that video can be handed over because it includes other children’s images and other children’s faces and behaviors and that could be an education record like Peter just mentioned because it would be directly related to those other students and maintained by the district. The question then that the principal will call us with is, “Hey, am I allowed to hand just hand over this video? Am I allowed to bring in the mother and show this video? What should I be doing in response to Jimmy’s mom’s request?”

Lisa: There’s also going to be some distinctions there to between showing the video and providing a copy.

Miriam: That’s an interesting point.

Lisa: Of the video. Let’s just keep that context as we move forward in our discussion.

Miriam: That’s a good point. Peter, what is the Family Policy Compliance Office say about that?

Peter: We do have some additional guidance from the Family Policy compliance office. You had other podcasts in 2017. Since then, they have clarified a few things, but not much. It’s still pretty much clear of mud.

Lisa:  So true.

Peter: It’s only a slightly clearer paddle of mud.

Lisa: I think they kind of gave us some factors to consider, would you say, but those factors are still pretty broad.

Peter: Right, that’s fair enough. In the letter, there’s a school district in Pennsylvania that had a hazing incident and the attorney sought some guidance from the federal agency. This hazing incident involves six perpetrators and two victims. In the video taken by the schools. I think is their surveillance system showed six perps, they were forcing two victims into a dressing room and the four perpetrators followed and two perpetrators remained as lookouts. Surveillance was not managed by the Law Enforcement Unit. That’s key because if the surveillance video was managed by the Law Enforcement Unit, the district could not rely on FERPA to protect the video from disclosure.

Lisa: That’s interesting. That’s going back to our definition of an education record, right, and whether or not it’s maintained by the education agency or the district.

Peter: Exactly. The video was used and displaying the students and is kept in their disciplinary files and the parent of one of the perpetrators requested the video in witness statements. The district that couldn’t afford the redaction and so that’s why the attorney from Pennsylvania wanted some guidance on whether or not this video recording needed to be disclosed.

Lisa: Basically, the district was saying we’re not going to disclose that because it would have been too costly.

Peter: They couldn’t afford the redaction.

Lisa:  Got it.

Miriam: I think that’s so interesting because you don’t usually get guidance based on a district’s financial ability to react or not react or comply with requirements. That’s kind of an unusual posture, I would say. So this attorney, Timothy Walker, wrote a letter to the Family Policy compliance office outlining the facts in his client’s case and basically asking for guidance. The district wanted to know if it’s this is an education record for the discipline students, can the district release the video to one parent without the other parents’ consent? The same thing can for the witness statements, can the district release the witness statements to an individual parent without the other parents’ consent?

Lisa: Two of those questions talk about other parents’ consent. The reason that’s important is in FERPA, you can release the private information about a student if first, the parent or the student if they’re over 18, gives consent.

Miriam: In other words, let’s say in our example with Jimmy’s mom, Jimmy’s mom was asking for that video of the kids on the bus. If the other kids’ parents say, “Sure, go ahead. Go ahead and give that to Jimmy’s mom. We don’t care.” They signed consent in writing then the school district is 100% permitted to release that record to Jimmy’s mom. The question here is if the parent if the other parents are not interested in consenting.

Lisa: Right and also, if the district needs to go through the steps to get that consent to notify those other parents to see if they’re even going to give consent and put it in writing all those pieces. Let’s walk through those. First is that an education record?

Peter: Here it would be as a surveillance video that was maintained by the district. The surveillance video showed the students in an altercation. Here was the hazing incident, but it is not educational record for all the students who may be in the background. It’s the educational record of only those students who were directly involved in the incident.

Lisa: That’s a good distinction. Only those students who either was the victim or are being disciplined for the incident, not all the spectators in the background who were just going about their business and not really directly involved in the incident?

Peter: Right. The district wants to look at who is the focus of the video.

Miriam: So in letter to Walker would be the perpetrators and the victims that would be their direct educational record, but not maybe the other kids who were just walking in the hallway, opening up the lockers, taking, getting their lunch out or whatever it is. Then in our example of Jimmy on the bus, it would not be an educational record for those kids who are just sitting on the bus, looking at the window and not participating in the altercation.

Lisa: Right. It would be a record for the victim and then whoever with the alleged perpetrator eligibly.

Miriam: Exactly.

Peter: Right.

Miriam: Go on, Peter. Tell us more about what the FPCO stated in its guidance.

Peter: The guidance letter indicated that FERPA required the districts to provide the opportunity to the parent to inspect, to review the records but not necessarily provide a copy of the record.

Miriam: This is the distinction, Lisa, that you were making earlier?

Lisa: Yes, absolutely. I think sometimes parents get confused especially about this distinction. Just to clarify for our listeners what we mean by Jimmy’s mom can come in and inspect and view. A lot of times districts don’t want to make a copy or release the copy out of their control especially in discipline issues and things because once you do that, you don’t know what’s going to happen to it. There’s definitely going to be concerns. Is that going to show up on social media? Are we going to spread more copies of it? Although a district could make a copy and that’s not going to violate FERPA once they’ve–

Miriam: Yes, providing a copy does not violate FERPA if the parent has the right to inspect and review.

Lisa: Right. A lot of times districts though, because of those other factors, are more comfortable with making this decision just to allow the parent to come and the inspect and view it.

Miriam: Unless circumstances prevent the parent from actually inspecting and reviewing, for example, let’s say the parent lives very far away in another state, unless there are circumstances like that, the district is only require to provide the opportunity to inspect and review records, not usually require to just hand over a copy.

Peter: That’s my understanding. The district can provide a copy as an accommodation but it’s not required to.

Miriam: Interestingly, in this letter about the hazing incident, the Family Policy Compliance Office highlighted another factor in the analysis of whether the district is permitted to hand over the video footage. If you can talk about that, Peter, a little bit about how redacting may or may not be required.

Peter: I would say the interesting part of the federal agency’s guidance is that the district doesn’t always have to redact or blur in the instance of redacting and blurring a video that may destroy the meaning of the video and may obscure everything to the extent that if you were viewing the video, you wouldn’t know what’s going on. Then the Family Policy Compliance Office indicated that you don’t have to redact.

Lisa: If we take those back just as stuff, parents asking to see it, they get a right to see, it’s their child’s education record, but the right to see only starts with the right to see their child. Step one, typically, would be expecting that the other students would be blurred out. Then they’re taking this a step further and saying, “By blurring out the other students, you destroy the meaning.”

Miriam: You can imagine, it just wouldn’t make sense. If you have a video of three kids fighting and you’re completely redacting two of those students, it doesn’t even look like three kids fighting. It would look very strange.

Lisa: Right. You couldn’t really see what was going on in the incident.

Miriam: In that case, the Family Policy Compliance Office would not require you to redact, is that correct?

Peter: That is correct.

Miriam: I think that also might apply if the district, like in this case, in the Pennsylvania case, doesn’t have the funding to redact in a way that keeps the meaning. Is that right?

Peter: Correct. To sum it all up, what I would say is the district should try to blur whenever possible. Then if they blurred the faces of the students, for those students who are directly involved and the meaning is destroyed, then they would have to give the requestor at least an opportunity to view the recording, but they don’t have to.

Miriam: The unredacted.

Peter: The unredacted-

Miriam: Yes, that’s important.

Peter: – recording. There is nothing that requires the district to provide a copy of that video.

Miriam: Unless the parent is far away or whatever.

Lisa: Right. Let’s break this down of the key takeaway questions districts should walkthrough should they’d be faced with this kind of request.

Miriam: Because I do agree that it’s still confusing. As I read this, I don’t know how a school district determines if the meaningias destroyed. Yes, let’s walk through a framework of decision-making.

Peter: For some videos, you may be able to determine more objectively that. I don’t know what I’m seeing here if I blur the participant’s faces. The Family Policy Compliance Office’s guidance also applies to written records. There was a mention of witness statements. The same analysis would apply to the witness statements. Typically, district, if they were going to disclose an educational record, they redact the names of those students involved except for the actual requestor or the parent of the requestor. Now, if you redact those names and the personally identifiable information and it destroys the meaning of the document or the meaning of the statement, the meaning of what’s being said, then you no longer have to redact.

Miriam: I think that’s very interesting because sometimes, we all know, school districts will redact just the name and then other times, they also redact any identifiable information that the requestor can figure out who the kid is even if the actual name is redacted. What we’re saying now is if you’re redacting so much, you’re redacting all possibly identifiable information and then if the record doesn’t make any more sense, you’ve gone too far.

Lisa: Right, which is really unique to these types of documents versus what is traditionally done for a records request.

Miriam: Let’s go back to the principal and Jimmy’s mom. What should the principal be asking herself? What’s the first question that this principal should ask herself in trying to decide whether she may provide access to Jimmy’s mom to view the bus video?

Peter: First, is this an educational record? Then is it an educational record of Jimmy? If so, FERPA will apply. Then are there any exceptions that might be a play that taken outside in the FERPA context say that this video on the bus was actually a law enforcement record. Perhaps the district has an arrangement with a local law enforcement agency that that agency conducts the video surveillance.

Miriam: On the busses. That’s right.

Peter: On the busses.

Miriam: In that case, it would not be a record protected by FERPA. If the law enforcement maintains that, then Jimmy’s mom is entitled to see it and the district does not even have to ask for consent from the other parents.

Lisa: Right, because we’re not even talking about an education record at that point.

Peter: Correct.

Miriam: Let’s say it is an education record, it’s Jimmy’s education record, it’s the education record of the alleged bullies, and it’s not maintained by law enforcement, only the district maintains the bus videos. Then what’s the next step in the principal’s analysis here?

Peter: The safest course but not necessarily the easiest course would be to get consent from the parents of all those students who were involved for the focus.

Lisa: First, consider if that is reasonable if you can do that?

Peter: Right. Written consent. It could be an email. Presumably, it could be an email back from the parents indicating their consent, but make sure that consent is written. You can’t just call up the parent and say, “Hey, is it alright if I show another parent, the video involving your child?”

Lisa: Say the district moves to that stop and that’s not an option or one of the parents isn’t willing to do that which I would imagine what happens frequently, especially when you have discipline going on. Then what’s the next question to look at?

Peter: Then can I redact the images or the faces of those students involved without destroying the meaning of that video? Can I conceal all the other faces except for Jimmy’s without destroying the meaning, without hiding what happened on the bus?

Lisa: So if the answer to that is yes, go ahead and redact those images and provide…

Miriam: Provide access.

Peter: Provide access, but not necessarily copy, exactly. Access is not necessarily a copy.

Miriam: Now, let’s say that the video would lose all meaning because you’re going to redact all the kids and then Jimmy is just fighting with nobody in the air on this video. That obviously destroys the meaning. If redacting would destroy the meaning or if redacting in such a way that keeps the meaning is too expensive, let’s say it’s tens of thousands of dollars to redact this video and the principal does not work for a district that has that kind of funding, what should he or she do?

Peter: What you allowed to do then is invite the requesting parent in to view the video, the inspect and review option that is allowed by the Family Policy Compliance Office.

Miriam: Even if the video and this is I think really important to clarify… even if that video is unredacted, and contains information about other children. It contains the video images of the alleged bullies…Jimmy’s mom is still permitted to view that? That’s correct, right?

Peter: That is correct.

Lisa: I know all this still is very confusing, and hopefully we provided some steps to walk through as far as what we know with guidance at this point. Also, for our listeners in other states, keep in mind, certain states have some of their own records laws, specific that might adjust this further.

Miriam: That’s right. You might have a state law that talks about student privacy and provides additional protection to students, you should definitely think about your state privacy laws as well.

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Lisa: We hope you find this very informative, thanks for joining us again. Next time, we are going to dive into some anonymous reporting apps in the wake of school tragedies. Talk about some implications there. Thank you again for joining us, Peter.

Peter: Thank you!

Miriam: Please subscribe to this podcast, and rate us highly on Apple Podcast, Deezer, Google Play Music or every you have your podcast. Definitely feel free to email us and let us know about any other topics that you’d like to hear about on Class Act Updates Educational. Have a great day!

Lisa: The content of this podcast is provided for general information purposes only. This podcast is not legal advice, does not create an attorney relationship, and should not be relied upon in making legal decisions. Actions on legal matter should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the veracity of the information contained on this podcast.