Yesterday, the federal Family Policy Compliance Office (FPCO) released an FAQ about how photos and videos should be treated under the Family Educational Rights and Privacy Act.
FERPA generally prohibits school districts from disclosing personally identifiable information from students’ education records without consent unless an exception applies. Education records are those records that “directly relate” to a student and are maintained by an educational agency or institution. FERPA regulations do not define what it means for a record to be “directly related” to a student.
In the FAQ, the FPCO stated that whether a photo or video “directly relates” to a student is context-specific, and will depend on a number of factors, including whether:
- the district used the photo or video for disciplinary action;
- the photo or video depicts an activity where a student is violating the law; getting injured, attacked, victimized, or ill; or having a health emergency;
- the person or entity taking the video intends to make a specific student the focus of the photo or video (e.g. ID photos, a recording of a student presentation)
The FPCO clarified that a photo or video should not be considered “directly related” to a student if the student’s image is incidental or captured only as part of the background, or if a student is shown participating in school activities that are open to the public and without a specific focus on any individual. For example, if a school maintains a close-up photo of two or three students playing basketball with a general view of student spectators in the background, the photo is directly related to the basketball players because they are the focus of the photo, but it is not directly related to the students pictured in the background.
If the photo/video is an education record for multiple students, FERPA requires the district to allow an individual parent to whom the video directly relates to inspect and review the video. FERPA generally does not require the district to release copies of the video to the parent or eligible student. If the district 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 district would be required to do so prior to providing the parent with access to the record. On the other hand, if redaction or segregation of the video cannot reasonably be accomplished, or if doing so would destroy the meaning of the record, then the parents of each student to whom the video directly relates would have a right under FERPA to access the entire record even though it also directly relates to other students. This is consistent with the position the FPCO most recently took in the FPCO’s 2017 Letter to Wachter.
The FPCO letter also reiterates that if the law enforcement unit of the district creates and maintains the video for a law enforcement purpose, then the videos would not be education records and FERPA would not prohibit the law enforcement unit from disclosing the video to an entity like the police. However, if the videos are education records, then the district may not turn over the videos to the police without having first either obtained the written consent of the parent(s) or determined that the conditions of one of the exceptions to the general requirement of consent have been met (i.e. health or safety emergency, subpoena, etc.)
If you have questions about the FAQ or its implications, please contact the OSBA division of legal services. For specific legal questions, please contact your district’s attorney.