Parents sometimes request to see surveillance video footage containing multiple students' images, when that footage is the basis for their own child's discipline at school. But is disclosing that video footage to one parent, unlawfully revealing personally identifiable information about other students depicted in the video? It is a grey area in the law because of the competing rights of the parties involved.
The U.S. Department of Education, Family Policy Compliance Office ("Office"), published a guidance document (Letter to Wachter), offering the Office's framework for responding to such a request. In that case the question involved surveillance video of a hazing incident involving multiple victims, perpetrators, and bystanders who were shown in the video footage.
The Office examined whether the surveillance video was an education record for the students involved, and whether the District was permitted to release the video to an individual parent of an involved student with or without the other parents' consent. The Office likewise examined whether written statements about the hazing incident were education records and subject to disclosure with or without the other parents' consent.
The Office explained that generally, the Family Educational Rights and Privacy Act ("FERPA") is the federal law that protects the privacy of students' education records and the personally identifiable information contained in those records, including generally requiring parental consent prior to disclosure. The Office further explained that FERPA does not provide a blanket right to copies, but a right to access. FERPA further provides that when education records contain information related to more than one student, a parent may inspect and review or "be informed of" only the specific information about his or her own child. According to the Office, only when the information about another student cannot be segregated and redacted without destroying its meaning may personally identifiable information about another student be disclosed without consent.
In light of this guidance, the Office found that the video and witness statements were education records for the perpetrators and victims, but not for the bystanders. Further, the parents of the alleged perpetrator had the right under FERPA to inspect and review information in the video and witness statements that were about the alleged perpetrator, even though they also contained information that was directly related to other students. This was lawful so long as the information in the records could not be segregated and redacted without destroying its meaning.
Thus, the Office directed the school district to review the video and witness statements to determine whether any personally identifiable student information could be redacted prior to disclosure. Because the school district at issue did not have and could not afford software to blur the video, the likely result would be allowing parents to view the videotape, but not provide a copy (unless copies were necessary to provide access). With regard to the witness statements, likely some redaction could be done (e.g., redacting student witness names) prior to disclosure.
In Ohio, FERPA applies to school districts along with numerous other laws governing records. Schools are well advised to utilize this Family Policy Compliance Office's letter as guidance, but seek additional legal review, as the disclosure of student information is a fact-specific inquiry.