Pupil Records and Family Law Court Orders

Randall Ranes, Supervisor of Student Services Bakersfield City School District

August 2000

Objectives: Pupil Records and Court Orders

Raise awareness about, and increase sensitivity to, parent access and privacy rights

Provide definitions and rules applicable to pupil records

Identify and list key issues in using judicial orders

Pupil Records: Controlling Law and Policy

The Family Educational Rights and Privacy Act (FERPA) is codified at 20 United States Code, section 1232g et seq.

The Family Policy Compliance Office (FPCO) (within Department of Education), administers FERPA: writes federal regulations (Code of Federal Regulations, 99.1 et. seq.) and policy letters.

California Education Code 49060 et seq.California Code of Regulations 430 et seq. Board policy entitled Pupil Records, #605.7.

Pupil Records Law

A person’s right to privacy is an implied right under the U.S. Constitution.

FERPA is civil rights legislation.

Current privacy issues (e.g., Children's Online Privacy Protection Act of 1998, Identity theft, Insurance company & health record access).

 

Pupil Record Laws: Legislative Intent

Parents have a statutory right to have:access to their student’s education records andprotection of their individual rights to privacy by limiting the access, disclosure, and transferability of their records without their consent.

Examples of Who Wants to Access Pupil Records?

Staff Parents Courts/attorneysOther governmental agencies like

Child Protective Services, Probation Department

Other school districts

Note: FERPA was originally cited as the “Buckley Amendment,” passed in 1974 and amended in 1992.

Does the material need to be personal or private in nature?

Everything in a student record is subject to protection regardless of whether it appears sensitive, personal, private, or confidential.

Certain pieces of information (e.g., data on communicable diseases) have elevated protections.

PUPIL RECORD: DEFINITION

Pupil record - any item of informationother than directory informationgathered within or outside the district, that is directly related to an identifiable pupil and maintained by the district or (required to be) maintained by an employee in

the performance of his/her duties.

Pupil Records Definition Continued

A pupil record may be recorded in handwriting, print, computer media, video or audio tape, film, microfilm, microfiche or by other means.

Any information maintained for the purpose of second party review is considered a pupil record (5 CCR 430).

Pupil record shall not include informal notes about a

pupil which a school employee keeps for private use and are not revealed to any other person except a substitute (Education Code 49061) - Sole possession clause.

Element Excluded in the Pupil Record Definition:

Directory Information

Directory information which school officials may disclose consists of the following: pupil's name, address, telephone number, date and place of birth, photograph, participation in officially recognized activities and sports, weight and height of athletic team members, dates of attendance, best interest of the student, degrees and awards received, and most recent previous school attended (Education Code section 49061 & 49073). (c.f., Board policy, Directory Information, BP 604.10, Guide for Parents and Students, pp... 17 & 43).

Element Excluded in the Pupil Record Definition:

Directory InformationContinued

See Guide for release requirements and the representatives to whom Directory Information may be released.

Elements of Pupil Record Definition: “Personally Identifiable”

Personally identifiable information includes, but is not limited to, the pupil's name, the name of the pupil's parent or other family member, the address of the pupil or pupil's family, a personal identifier such as the pupil's social security number or pupil number, a list of personal characteristics, or other information that would make the pupil's identity easily traceable (34 CFR 99.3).

Element of Pupil Records Definition: “Directly Related To”

“Directly related to” is not defined in law nor regulations, we must infer meaning

Directly vs. indirectlyUse “personally identifiable” definition to helpCan be directly related even without the

student’s nameLegal counsel opined that if a student

incidentally appeared on a videorecording. the mere presence of the student’s face, for example, would not make the recording a student record

A “Slide” Out of Context: Public Records

Public Records are different than Pupil Records

The law also provides citizens access to the public records of the district

Public records include any writing containing information relating to the conduct of the district's business prepared, owned, used or retained by the district regardless of physical form or characteristics (Government Code 6252) (c.f. District Policy 300.12)

For example: reports, memos, statistical compilations

Disclosure and Pupil Records

Disclosure means to permit access to, or the release, transfer, or other communication of personally identifiable information contained in education records, to any party, by any means including oral, written, or electronic means (34 CFR 99.3).

“Contained in pupil records” does not mean observations of a pupil (unless becomes a pupil record) and does not mean information from a source other than pupil record.

Pupil Record Access

Access means a personal inspection and review of a record, an accurate copy of a record or receipt of an accurate copy of a record, an oral description or communication of a record, and a request to release a copy of any record (Education Code 49061).

Access to Pupil Records

The custodian of pupil records shall be responsible for the security of pupil records and shall assure that access is limited to authorized persons (5 CCR 431 and 433)

District Pupil Record Custodian (Supervisor of Student Services); & Site Pupil Record Custodian (Principal or Designee)

Permitting Authorized Access Does Not Mean Creating Records

Individuals interested in obtaining information about pupils

Pupil records and Public Records

Social Security Administration

General Rule for Authorized Record Access

The general rule for pupil record access for a non-parent or non-staff member is a requirement for: Written parental consent or Judicial order (properly issued

subpoena) (Education Code 49076)

Parent Notification of Rights

The law requires an effective notice of rights

See Guide for Parents and Students

District policy entitled “Parent Rights and Responsibilities” (BP 300.48)

Who is a Parent for Purposes of Pupil Record Access?

Parent means a natural parent, adoptive parent, or legal guardian (Education Code 49061).

Parent/Legal Guardian Access to Pupil Records

Access to parents shall be provided within five days of the request, during school hours (Education Code 49069) (emphasis added).

The editing or withholding of such records is prohibited by law.

Access to pupil records and information shall not be denied to a parent because he/she is not the child's custodial parent (Family Code 3025).

Parent Access (Continued)

A parent requesting access to a pupil record will be asked by a staff member, although will not be required, to complete a record request form (see Pupil Services Handbook).

A school official accompanies a parent while the parent is inspecting education records. Access does not include the records of children other than the parent’s own.

Role of School Official: Pupil Record Access

Verify the person’s identity Confirm and describe the location(s) of all of the pupil’s

records When appropriate, direct the parent to, or bring together,

all of the pupil’s records the parent desires to access Explain laws/regulations relating to “confidentiality” of the

information in the pupil records Assist the parent in understanding the content of the

education records under review Make sure the original record is not modified or released Refer parent to appropriate resources if there are further

questions about the record  

Parent Access (Continued)

Record reviews are permitted no matter how frequently the parent requests such access.

The parent need not provide a reason, nor justify, his or her intent in conducting such a review.

“Staff” Access to Pupil Records

School officials and employees include governing board members, instructional, supervisory, administrative, and ancillary personnel employed by or under contract with the district such as a school district attorney, auditor, medical consultant, therapist, special education service provider, or expert witness (In re: Amanda R., 1997 and Marshfield School [Union 103], 1995).

Record Access: Parties with Legitimate Educational Interests

The following persons or agencies shall have access to those particular records which are relevant to the legitimate educational interests of the requester (Education Code 49076):

School officials and employeesSchool attendance and review board

members (Continued)

Record Access: Parties with Legitimate Educational Interests (Continued)

Officials/employees of other public schools or school systems where educational programs leading to high school graduation are provided

Federal, state, and local officials, as needed for program audits or compliance with law;

Any district attorney who is participating in or conducting a truancy mediation program

A prosecuting agency for consideration against a parent/guardian for failure to comply with compulsory education laws;

Record Access: Parties with Legitimate Educational Interests (Continued)

Any probation officer or district attorney for the purposes of conducting a criminal investigation or an investigation in regards to declaring a person a ward of the court or involving a violation of a condition of probation;

Any judge or probation officer for the purpose of conducting a truancy mediation program for a pupil, or presenting evidence in a truancy petition pursuant to Welfare and Institutions Code section 681. Under these provisions, the parent must be notified within 24 hours of release of the information (Education Code section 49076)

Permitted Access

Information from pupil records may be released (Education Code 49076) to the following:

Appropriate persons in an emergency if health and safety are at stake

Agencies in connection with pupil’s application for financial aid

Accrediting associations Organizations

conducting studies on behalf of educational institutions

Officials/employees of private schools where the pupil is enrolled or intends to enroll (subject to parent rights)

California Pupil RecordClassification Scheme

Mandatory interim pupil recordsMandatory permanent pupil recordsPermitted pupil records

Mandatory Permanent Pupil Records1. Legal name of pupil;2. Date and place of birth;3. Method of verification of birth date;4. Sex of pupil;5. Name and address of parent of minor pupil;

a. Address of minor pupil if different from the above;b. Annual verification of parent's name and address and pupil's residence;

6. Enter and leave date of each school year and for any summer session or other extra session;

7. Subjects taken during each year, half-year, summer session, or quarter, and marks or grades given; and

8. Verification of required immunizations or waiver.

Mandatory Interim Pupil Records

1. Expulsion orders and the causes therefore;2. A log identifying persons or agencies who request or receive information from the pupil record;3. Health information, including Child Health Development

Disabilities Prevention Program verification or waiver;4. Information on participation in special education programs,

including required tests, case studies, authorizations, and evidence of eligibility for admission or discharge;

5. Language training records;6. Progress slips/notices required by Education Code 49066 and 49067;7. Parental stipulations regarding access to directory information;8. Parent or adult pupil rejoinders or responses to challenged

records and to disciplinary action;9. Parental authorization or denial of pupil participation in specific programs; and

10. Results of standardized tests given within the past three

years.

“Permitted Records” May Include

1. Objective counselor/teacher ratings;

2. Disciplinary notices and data;3. Verified reports of relevant

behavior patterns;4. Standardized test results older

than three years; and5. Supplementary attendance

records.

Retention and Destruction of Pupil Records

Mandatory permanent pupil records shall be kept in perpetuity.

Unless forwarded to another district, mandatory interim pupil records may be destroyed three years after determining that their usefulness has ceased or that the pupil has left the district.

Permitted pupil records may be destroyed when their usefulness ceases, to include destruction six months after the pupil completes or withdraws from the educational program (5 CCR 437).

Destruction of Pupil Records

Records shall be destroyed in a way that guarantees they will not be viewed by the public (5 CCR 437).

Summary Pupil Record Access Issues

Annual notification of parent rightsAccess within five days of request

(Parent, legal guardian, adoptive parents)

Parent not denied access simply because they are not the custodial parent

Parent Absolute Right of Access to Pupil Records

Remember broad definition of pupil records (Any item of information. .. . directly related to an identifiable pupil. . . maintained by the district )

Sole possession clauseOral information based on personal

observation or knowledge of a pupil is not

included in pupil record Five-day ruleNo editing or withholdingNo limits on number of times parent

accessesNo justification for parent’s access

Pupil Record Access Log

A pupil record access log must be maintained for the purpose of identifying all persons, agencies, or organizations requesting or receiving information from that pupil’s records.

The log must indicate the record inspected, the name of the person granted access, the reason access was granted, and the time and circumstances of inspection.

Pupil Record Access LogContinued

Exceptions: Education Code 49064 outlines the parties who do not have to be noted on the log. Pupil Services Handbook has exceptions and example log.

Challenging Pupil Records

A parent may challenge a pupil record by alleging the information contained in the records is: inaccurate, an unsubstantiated personal conclusion or inference, a conclusion or inference outside of the observer’s area of competence, not based on the personal observation of a named person with the time and place of the observation noted, misleading, or in violation of the pupil’s privacy rights (District form to challenge record in PS Handbook)

Process for Responding to Record Challenge

Within 30 days of receiving a written request to correct/remove information from a pupil record, the superintendent/designee meets with the parent/guardian and with the employee (if still employed) who recorded the information in question.

Superintendent/designee then sustains or denies the allegations (Education Code 49070).

Record Challenge Continued

If allegations are sustained, superintendent/designee orders the correction, or removal and destruction, of the information (Education Code 49070).

If the superintendent denies the parent’s record allegations, there are several appeal steps listed in the statute and described in policy.

Transfer of Pupil Records

When a pupil enrolls or intends to enroll in another district, the pupil’s previous district shall forward a copy of his/her mandatory permanent records as requested by the other district or private school.

All pupil records shall be updated before they are transferred (5 CCR 438).

Transfer of Pupil Records (Continued)

Mandatory interim records shall be sent upon request to other California public school districts and may be sent to out-of-state or private schools requesting them.

Permitted records may be sent to

any other public school district or private school (5 CCR 438).

Parent Notice in Transferring Records

If the pupil transfers into the district from any other California school district or a private school, the parent shall be informed of their right to challenge, and receive a copy of the permanent record received from the former school.

(Give ‘em a Guide)

Withholding Transfer of Pupil Records

Records may be withheld from a parent owing the district money (if due process provisions are followed), not another school district.Pupil records shall not be withheld from the requesting district because of any charges or fees owed by the pupil or parent (5 CCR 438).

Withholding Transfer of Pupil Records(Continued)

If the district is withholding grades, a diploma, or transcripts from the pupil because of his/her damage or loss of school property, this information shall be sent to the requesting district along with the pupil's records.

Special Protections: Pupil with Recognized Disability

Pupils with exceptional needs have the following additional rights: School must respond to a parent record access request before any meeting to consider the pupil’s Individual Education Program (IEP) (34 CFR 300.345[f]), even if the request is not made five days before the meeting;

CONTINUED

Special Protections: Pupil with Recognized Disability (Continued)

Parents have the right to have a representative inspect and review education records on their behalf (34 CFR 300.562[b][3]); and

Whenever a disabled pupil is disciplined the same as a no disabled pupil, the principal or principal’s designee, before taking the disciplinary action, must be provided with the pupil’s disciplinary and special education records (20 USC 1413[j]).

Pupil Records Summary

Access Log

Challenging Pupil Records

Transferring Pupil Records

Subpoenas, Custody Orders, Temporary Restraining Orders and Injunctions

SubpoenaCriminalCivil

Respond

Subpoenas, Temporary Restraining Orders (TROs) and Injunctions (Continued)

What does temporary really mean?2-week periodTips on reading TROs

What is prohibited? Who is restrained?

Custody Issues

A parent, whether custodial or non-custodial, has rights of access to their child and information concerning the child unless there is a restriction by court order. The circumstances of restricted access, if any, will be addressed in the court order. Only in extreme cases would the court order indicate the parent was not to see the child at all.

Custody Issues Continued: Definitions

Physical custody determines where a child will live while legal custody determines which parent makes decisions relating to the health, education and welfare of the child.

Custody Issues Continued: Definitions

"Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

"Joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.

"Joint custody" means joint physical custody and joint legal custody.

More Definitions

"Sole legal custody" means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

"Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.

Citations for definitions (Family Code§ 3002-3007).

Custody Issues and the School

Recommendation not to take sides, no letters of “support”

Student Services Dept. help interpret provisions

If visitation spelled out, not permit parent to use school to extend visitation

If joint legal custody and parents unable to agree --back to court?

Overall Summary