Education Law Notes  

Connecticut’s Freedom of Information Act (FOIA) generally provides access to records created by public agencies (including school districts).  However, the FOIA contains an exemption from disclosure for “educational records” that are covered by the federal Family Educational Rights and Privacy Act (FERPA).  Generally, FERPA prohibits school districts from disclosing educational records (or personally identifiable information concerning students contained in those records) without parental consent.  A recent decision by Connecticut’s Freedom of Information Commission (FOIC) provides further guidance for school administrators seeking to navigate between the right to privacy and the “right to know.”   

The Never-Ending Battle Over Videotapes of Students.  While FERPA generally prohibits school districts from disclosing educational records or personally identifiable information contained in those records without parental consent, FERPA grants parents the right to inspect and review their own child’s education records.  These FOIA and FERPA requirements sometimes collide when the records of one student (for example, videotapes) contain personally identifiable information and/or educational records concerning another student.

Federal Guidance Under FERPA. In light of FERPA and previous formal guidance from the U.S. Department of Education; Letter re: Berkeley County School District (Family Policy Compliance Office, February 10, 2004); the FOIC had repeatedly upheld decisions by school districts not to release videos (for example, security videos) containing student images, especially where 1) the requested videos would reveal a student image to someone other than that student’s parent, and 2) the videos could not be edited (for example, via pixelating) to obscure or delete the images of the other students in the videos. 

We had thought that the times could be a changing when the U.S. Department of Education issued a guidance letter in 2017 that hinted that parents of a student may have the right under FERPA to inspect and review information in videos even if a video also includes images of other students.  Letter to Wachter (Office of the Chief Privacy Officer, December 7, 2017). This guidance letter dealt with records (including videos) maintained and used in student disciplinary matters; the U.S. Department of Education found that videos would constitute “educational records” for both the student “victims” and student “perpetrators” depicted in the video.  Under this letter, the “right” to inspect would apply even in circumstances where it is not possible to edit or obscure the images of the other students.  This 2017 guidance letter did not suggest that a school district was required to provide copies of videos to parents, but merely indicated that parents had a right to view or “inspect” them.  Furthermore, this guidance letter only spoke to the right of access of the parents of students who appear in the video.  It did not create a blanket obligation to provide access to the general public or to parents of other students who are not depicted in a particular school video. 

So has the FOIC changed it views on the issue of school videos? Nope. It appears that the FOIC is continuing to follow its prior rulings that expressly recognized that school districts may be prohibited from providing (and may refuse to provide) access to records to the parents of a student that contain information about other students unless they can be redacted to remove the ability to identify the other students.  In Vasquez v. Superintendent of Schools, Hartford Public Schools, #FIC 2023-0489 (July 24, 2024), a parent concerned about a late drop-off of their child (and an alleged subsequent lack of security/monitoring, with the child allegedly wandering off) requested to view surveillance video inside the school recording students being signed in with the security guard and then entering the school through the late-drop off door. The school district refused to provide access to the video, asserting that the record was exempt from disclosure under FERPA. 

Continuing to rely upon the 2004 U.S Department of Education guidance (and perhaps rejecting or ignoring the 2017 guidance letter), the FOIC found that FERPA does NOT give a right to parents to review records which include information about (or depict) students other than their child.  The FOIC noted that the requested surveillance video showed numerous students (in addition to the child of the parent making the request to inspect the video), and further found that the school district was unable to edit the video or delete the images of other students.  As the disclosure of the requested video would result in the disclosure of educational records of other students within the meaning of FERPA, this video was deemed exempt from disclosure under the FOIA.

A Practical Solution? Interestingly, the FOIC noted in Vasquez that although the video was exempt from disclosure, the school district had been able to capture still images and print out several redacted photos from the video (and provided them to the parent requesting the video).  Such photos included a photo of the requestor’s son being retrieved by school staff from a room into which he wandered.  The school district’s actions represent a compromise that yours truly often proposes when facing similar requests as in Vasquez.  The FOIC appears to believe that such a compromise is a way to honor both FERPA and FOIA.                  

Please note: This post was adapted from an article written by the author for the December 2024 edition of the CABE Journal