ED official clarifies student protections under FERPA when it comes to digital media

ORLANDO, Fla. — Michael Hawes, director of student privacy policy at the U.S. Education Department’s Office of the Chief Privacy Officer, spoke recently at the 2018 National Future of Education Technology Conference to a small group of district IT leaders and educators.

During the session, he summarized the key tenets of the Family Educational Rights and Privacy Act and the Protection of Pupil Rights Amendment, two key federal laws that govern student privacy, before opening the floor to attendee questions.

FERPA, which was passed by Congress in 1974, is not so cut-and-dry when it comes to protecting digital media that bear images of students and end up in students’ educational records, Hawes said.

FERPA was enacted at a time when “no one was thinking about all of the technology that we deal with on a day-to-day basis,” he said. “Students’ education records back then were pieces of paper that were filed in the principal’s office. We live in a very different world, but we still have the same law applying to the protection of student records.”

He said ED is trying to provide “greater and greater clarity on the application of those requirements under the law to these technologies in situations that those of you in this room face in the classrooms of your schools.”

As for photos and videos, it’s “complicated,” Hawes said. Safeguarding digital media that includes students is determined based on FERPA’s definition of an “education record,” which is defined by law as anything that’s directly related to the student and is maintained by or on behalf of an educational institution.

This becomes more complicated as more classrooms employ apps, online solutions, and video-capturing programs that collect student information.

Hawes said a picture of a student is “definitely PII” and likely qualifies as an education record if the image features the student and is also “maintained” by the school.

“If it was just livestreamed on the school’s webcam and it wasn’t being recorded, such as in a graduation, then you’re probably not meeting the definition of education record,” he told attendees.

Wattsburg FERPA decision

A related scenario played out in the Wattsburg Area School District in Erie County, Pa., which received a state Right-to-Know Act request from a parent of a student for a copy of a school’s surveillance video of a hazing incident, and for copies of statements that other students wrote regarding the incident.

The parent making the request had a student who was involved in the incident and was reprimanded as a result of his participation, according to ED’s investigation letter.

The school’s surveillance video captured six perpetrators forcing two victims into the school’s wrestling room.

The local education agency asked ED that if the video was the education record of all students involved in the incident, did they need permission from each parent before sharing it with the requesting parent. They also asked if the same applied to the witness statements.

Hawes said that FERPA’s access provisions “generally would not require the district to provide copies of the videotapes or the witness statements to parents of the disciplined student who requested copies of these records; any requirement for the district to provide or release copies of these records to parents would arise under the Pennsylvania’s Right-to-Know Law, rather than FERPA,” he wrote in the letter.

On the other hand, “FERPA requires the district to allow an individual parent of a student who was disciplined for the incident, or the student if the student is an eligible student, to inspect and review his or her child’s education records upon request, but generally does not require the district to release copies of education records,” he explained.

“That said, it would not violate FERPA for the district non-consensually to disclose to an eligible student or his or her parents copies of education records that the eligible student or his or her parents otherwise would have the right to inspect and review under FERPA,” he concluded.

Before such disclosure, however, he recommended that the district obtain written consent from other parents and eligible students who were involved in the incident before sharing the information and, if possible, to segregate or redact any information in witness statements that didn’t involve the student of the requesting parent if doing so does not “destroy its meaning.”

Similarly, if the district can share only a portion of the video involving the perpetrating student that would “fully depict the student’s involvement in the hazing incident,” then such segregation is required, he added.

Emily Ann Brown covers education technology and STEM education issues for LRP Publications.

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