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The Family Policy Compliance Office of the U.S. Department of Education recently published a FAQ regarding the scope of the Family Educational Rights and Privacy Act (“FERPA”) as it applies to photos or videos of students, and clarifying what that office believes a school district should do when a photo or video is an education record for multiple students.

As reiterated in the FAQ, a photo or video is covered by FERPA when it is (1) directly related to a student, and (2) maintained by an educational institution or parties acting on behalf of an educational institution. The precise definition of the term “directly related to a student” has been a point of contention for some time, and this guidance seeks to resolve confusion on the matter.

Per this FAQ, determining whether a video or photo is “directly related to a student” is a context-specific analysis that should be evaluated with the following four factors:

  1. Whether the educational institution uses the photo or video for student disciplinary action, including pending disciplinary action.
  2. Whether the photo or video depicts either a violation of law, or an attack, injury, or health emergency of any kind.
  3. Whether the person or entity taking the photo or video intends to make a specific student the focus of the photo or video. For example, ID photos or student presentations.
  4. The photo or video “otherwise contains personally identifiable information contained in a student’s education record.”

Generally, if a student’s image is only part of the background of a photo or video, or if the recording is of school activities open to the public without a focus on a particular individual, such photos or videos should not be considered “directly related” to a student.

However, when a photo or video captures multiple students and qualifies as an education record directly related to more than one student captured in the recording, it should be considered an education record for all such students. Significantly, the FAQ states that when providing a parent access to a photo or video that depicts multiple students and qualifies as an education record, and where redaction or segregation of other students in the video “cannot reasonably be accomplished” or “doing so would destroy the meaning of the record,” then “the parents of each student to whom the video directly relates . . . have a right under FERPA to access the entire record even though it also directly relates to other students.”

The FAQ also offers clarity on three other issues. The FAQ (1) confirms that legal representatives of parents may review protected photos or videos with parents, (2) that parents may be charged for the cost of making copies of education records, but not for the cost of redactions, and (3) that recordings created by law enforcement units of an educational institution for law enforcement purposes are not education records, and schools may not turn over education records to law enforcement units of an educational institution before obtaining parental consent.

This guidance better delineates the extent of FERPA obligations with regard to whether a photo or video qualifies as a protected educational record. It should be noted, however, that in addition to FERPA, the Illinois School Student Records Act and the Local Records Act govern access to, maintenance of, and destruction of student records in Illinois.

For your questions regarding student records, please contact Bennett Rodick or Jessica Nguyen.