Updates from the Feds: FERPA Surveillance Video

By Marlene Wyatt, Associate

Eichelbaum Wardell Hansen Powell & Mehl, P.C.

In April, the Family Policy Compliance Office (FPCO) issued new guidance concerning FERPA and video surveillance. It answers some of the ongoing questions that districts have wrestled with as video surveillance has become more prevalent.

As with any physical or electronic document, video footage is only a record under FERPA if it directly relates to a student and is maintained by the district.^[1]   Video footage does not become a FERPA record simply because it shows students.  Instead, the footage must directly relate to a student. FPCO gave the following examples of footage that would qualify as a FERPA record. 

The footage:

• is used for disciplinary action or pending disciplinary action,
• shows a student violating local, state, or federal law,
• depicts a student getting injured, attacked, victimized, ill, or having a health emergency,
• intends to focus on one student (I.D. card, class presentation, etc.), or
• captures other Personally Identifiable Information (recording of faculty meeting that discusses specific students’ grades).

It is important to note that not every student depicted in the videos above would be able to claim the footage as FERPA protected. Students that are mere bystanders or walking in the background are not directly related to the footage; instead, they are only incidentally related to the footage and cannot claim the video as a FERPA-protected document. 

FPCO also addressed the fact that most videos are often FERPA records for more than one student. For example, when a fight breaks out, the video is a FERPA record for all of the students involved. FPCO states that if one student’s parent requests to see the video, the district should redact or segregate out the portions of the video that directly relate to other students if it can reasonably do so. However, the video should not be redacted if the redaction would destroy the meaning of the video.

Districts cannot charge parents for redactions. FPCO reiterated that FERPA does not require districts to provide copies of videos, but it is not a violation of FERPA to do so. Districts may charge for copies.

SURVEILLANCE BY DISTRICT POLICE FORCE

If a district has a police force that conducts video surveillance for purposes of law enforcement, such footage is not a FERPA record and the police have free access to it. If the police force gives the district a copy of footage that directly relates to a student, that copy becomes a FERPA record.

SURVEILLANCE BY SCHOOL

If a district has its own surveillance system that is not run by a police force, any footage maintained by the district that is directly related to students is a FERPA record. The district may not disclose the footage to the police without consent or the presence of a FERPA exception (judicial order, subpoena, health or safety emergency). 

IMPLEMENTATOIN REMINDERS

EMPLOYEES

FERPA does not pertain to employees.  A teacher cannot claim a FERPA privacy right to a surveillance video that shows her monitoring children or disciplining children.  If there is a circumstance in which an employee desires that certain footage remain confidential, possibly a health incident that does not concern children, there are other laws that can protect the footage.  Contact your local attorney in such instances.

MEDIA REQUESTS

Media outlets, likely following their internal policies regarding footage of minors, mistakenly assume that blurring students’ faces will alleviate any FERPA issues pertaining to their Public Information Act requests.  However, in almost every case, the footage is still protected by FERPA even if the faces are blurred.  

FERPA has a broad definition of what constitutes personally identifiable information (PII) that that the statute protects.  PII includes “information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.”^[2]  There are virtually no students in a district that could not be identified by any other student, parent, relative, coach, etc., even if the student’s face is blurred.  

PII also includes information requested by a person who the district reasonably believes knows the identity of the student to whom the education record relates.^[3]  If a reporter asks,

Please send the video of Tommy Wright fighting Jimmy Miller

on the bus last Thursday.  We understand that their faces must

be blurred because they are minors.

The video is automatically FERPA-protected because the requester can identify the students even if their whole bodies were blurred out.

In conclusion, as evidenced above, districts must analyze footage on a case-by-case basis to determine whether it is FERPA protected, which students can claim FERPA protection, to whom to show the material, and whether to redact the material. The full guidance from FPCO can be found at https://studentprivacy.ed.gov/faq/faqs-photos-and-videos-under-ferpa. As always, be sure to contact your school attorney for further clarification.    

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