Surveillance videos capturing student altercations in school hallways, on buses or athletic fields allow school officials to see the incidents through a lens that often helps reconcile differing accounts given by witnesses. In the past, schools usually declined demands by parents to see or get copies of videos supporting the discipline of their children, reasoning that video images of other students are private educational data that cannot be disclosed, and redaction of the videos is difficult or not possible. Schools may no longer reject such parent requests.
Despite the legitimate student privacy concerns, recent legal developments mean that a school—particularly if it is using the video as evidence in a disciplinary matter—will have to let the parents of students to whom the video “directly relates” view the video and may have to provide them a redacted copy.
In 2016, two Minnesota Supreme Court cases held that data subjects do have a right to access a video in which they are a subject, even if the video also contains private data on another data subject. Those opinions did not address educational data or redaction, however, so they left some questions up in the air.
Guidance from the U.S. Department of Education interpreting the federal Family Educational Rights and Privacy Act (“FERPA”) as it relates to photos and videos states that, for a video to constitute an education record under FERPA, it must “directly relate” to the student and be “maintained” by the school district. (It should be noted that data is protected under the Minnesota Government Data Practices Act (“MGDPA”) if it “relates to a student,” a standard arguably broader and therefore more protective than FERPA’s “directly relates” test.)
A video directly relates to a student when the student is, for whatever reason, the focus of the video (as opposed to a mere bystander). Under FERPA, parents of students who are the focus of a video (i.e., those students for whom the video constitutes an education record), are entitled to “inspect and review” the video. Thus, a school may not prevent the student or his parent from viewing the video.
Moreover, when it is feasible, and without destroying the meaning of the record, a school must redact or segregate the portions of the video directly related to other students prior to parent viewings. This means that if a school district does not already have access to video-editing software, the software should likely be purchased so that identifiable information about other data subjects (such as, for example, the face of another student involved in an altercation) can be obscured before parents view the video. Given the wide availability of such technology, it is unlikely to be persuasive to claim that video redaction is not feasible. In the rare circumstance that redaction would destroy the record’s meaning, the parent/student still has the right under FERPA to view the unredacted video.
More recent FERPA guidance and a 2019 Minnesota Data Practices Office (“DPO”) Advisory Opinion shed more light on the right of students and their parents to access videos.
In Advisory Opinion 19-004, a parent requested access to a hallway video that showed an altercation between the parent’s child and another student, with several other students in the background. The DPO referred to 2017 guidance from the federal Family Policy Compliance Office (“FPCO”), Letter to Wachter, which addressed a parent request for a copy of a video of a hazing incident that depicted a number of other students. The FPCO concluded that if the school could segregate the data about the parent’s student, FERPA requires it to do so. But if not, FERPA requires that the school allow the parent to view the unredacted video. The DPO confirmed this interpretation and held that “the District should provide the parents of the students (or eligible student data subjects) involved in the altercation access to the unredacted video in these circumstances.” With respect to the students in the background, if the background students’ images “are incidental and not accessible by their names” (i.e., in their education records or files or labeled by their names), then the video does not constitute educational data on those students.
As for copies, the Letter to Wachter noted FERPA does not require school districts to provide copies of education records to parents and eligible students, but also noted that FPCO could not advise on state data practices laws, and confirmed that “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.”
Consequently, because Minnesota law requires government entities to provide data subjects with copies of their data upon request, and FERPA does not prohibit providing copies, Minnesota school districts likely must release a redacted copy of a video to a parent who requests one.
In lieu of initially providing a copy, school districts may offer to allow the requesting parents and student to come in and view the video in hopes that will satisfy them. If they persist in requesting a copy, however, Minnesota law requires that a redacted version of the video should be provided.
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Greg Madsen is an attorney and shareholder at Kennedy & Graven, Chartered, whose practice includes all aspects of education law, and is certified by the Minnesota State Bar Association as a Labor and Employment Law Specialist. For more information, please contact him at (612) 337-9305 or firstname.lastname@example.org.
Adam Wattenbarger is an attorney and shareholder at Kennedy & Graven, Chartered, whose practice is focused on all aspects of education law. For more information, please contact him at (612) 337-9306 or email@example.com.
© Gregory S. Madsen and Adam C. Wattenbarger (2022). Used by permission.