Frequently Asked Questions

This section is designed to allow stakeholders easy access to all Frequently Asked Questions about student privacy.  All of the questions contained on this page have been tagged for easy browsing by either topic or audience.  This section is regularly updated as new questions are received.  You may also search the FAQs by using the search box on the top right of the page.

FAQs on Photos and Videos under FERPA

 

1. When is a photo or video of a student an education record under FERPA?

As with any other “education record,” a photo or video of a student is an education record, subject to specific exclusions, when the photo or video is:  (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. (20 U.S.C. 1232g(a)(4)(A); 34 CFR § 99.3 “Education Record”)[1]

Directly Related to a Student:

FERPA regulations do not define what it means for a record to be “directly related” to a student. In the context of photos and videos, determining if a visual representation of a student is directly related to a student (rather than just incidentally related to him or her) is often context-specific, and educational agencies and institutions should examine certain types of photos and videos on a case by case basis to determine if they directly relate to any of the students depicted therein. Among the factors that may help determine if a photo or video should be considered “directly related” to a student are the following:

  • The educational agency or institution uses the photo or video for disciplinary action (or other official purposes) involving the student (including the victim of any such disciplinary incident);
  • The photo or video contains a depiction of an activity:
    • that resulted in an educational agency or institution’s use of the photo or video for disciplinary action (or other official purposes) involving a student (or, if disciplinary action is pending or has not yet been taken, that would reasonably result in use of the photo or video for disciplinary action involving a student);
    • that shows a student in violation of local, state, or federal law;  
    • that shows a student getting injured, attacked, victimized, ill, or having a health emergency;
  • The person or entity taking the photo or video intends to make a specific student the focus of the photo or video (e.g., ID photos, or a recording of a student presentation); or
  • The audio or visual content of the photo or video otherwise contains personally identifiable information contained in a student’s education record.

A photo or video should not be considered directly related to a student in the absence of these factors and if the student’s image is incidental or captured only as part of the background, or if a student is shown participating in school activities that are open to the public and without a specific focus on any individual.

Examples of situations that may cause a video to be an education record:

  • A school surveillance video showing two students fighting in a hallway, used as part of a disciplinary action, is directly related to the students fighting.   
  • A classroom video that shows a student having a seizure is directly related to that student because the depicted health emergency becomes the focus of the video. 
  • If a school maintains a close-up photo of two or three students playing basketball with a general view of student spectators in the background, the photo is directly related to the basketball players because they are the focus of the photo, but it is not directly related to the students pictured in the background. Schools often designate photos or videos of students participating in public events (e.g., sporting events, concerts, theater performances, etc.) as directory information and/or obtain consent from the parents or eligible students to publicly disclose photos or videos from these events.
  • A video recording of a faculty meeting during which a specific student’s grades are being discussed is directly related to that student because the discussion contains PII from the student’s education record.

Maintained by an educational agency or institution:

To be considered an education record under FERPA, an educational agency or institution, or a party acting for the agency or institution, also must maintain the record. Thus, a photo taken by a parent at a school football game would not be considered an education record, even if it is directly related to a particular student, because it is not being maintained by the school or on the school’s behalf. If, however, the parent’s photo shows two students fighting at the game, and the parent provides a copy of the photo to the school, which then maintains the photo in the students’ disciplinary records, then the copy of the photo being maintained by the school is an education record.

Exclusion for Law Enforcement Unit Records

The FERPA statute and regulations (20 U.S.C. 1232g(a)(4)(B)(ii) and 34 CFR §§ 99.3 and 99.8) exclude from the definition of education records those records created and maintained by a law enforcement unit of an educational agency or institution for a law enforcement purpose. Thus, if a law enforcement unit of an educational agency or institution creates and maintains the school’s surveillance videos for a law enforcement purpose, then any such videos would not be considered to be education records. If the law enforcement unit provides a copy of the video to another component within the educational agency or institution (for example, to maintain the record in connection with a disciplinary action), then the copy of the video may become an education record of the student(s) involved if the video is not subject to any other exclusion from the definition of “education records” and the video is:  (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. 

 

2. Can the same recorded image be the education record of more than one student under FERPA?

Yes. For example, a surveillance video that shows two students fighting on a school bus that the school uses and maintains to discipline the two students, would be “directly related to” and, therefore, the education record of both students.

 

3. If a video is an education record for multiple students, can a parent of one of the students or the eligible student view the video? 

When a video is an education record of multiple students, in general, FERPA requires the educational agency or institution to allow, upon request, an individual parent of a student (or the student if the student is an eligible student) to whom the video directly relates to inspect and review the video. FERPA generally does not require the educational agency or institution to release copies of the video to the parent or eligible student. 

In providing access to the video, the educational agency or institution must provide the parent of the student (or the student if the student is an eligible student) with the opportunity to inspect and review the video. If the educational agency or institution can reasonably redact or segregate out the portions of the video directly related to other students, without destroying the meaning of the record, then the educational agency or institution would be required to do so prior to providing the parent or eligible student with access. On the other hand, if redaction or segregation of the video cannot reasonably be accomplished, or if doing so would destroy the meaning of the record, then the parents of each student to whom the video directly relates (or the students themselves if they are eligible students) would have a right under FERPA to access the entire record even though it also directly relates to other students.

For a fuller legal analysis and explanation of this issue, please see the 2017 Letter to Wachter.

 

4. If a video is an education record for multiple students, can the parent of one of the students (or the eligible student) receive a copy of the video? 

While we do not advise on an educational agency’s or institution’s obligations under any state open records laws that may apply, we note that FERPA does not generally require an educational agency or institution to provide copies of education records to parents and eligible students[2]. That said, it would not violate FERPA for an educational agency or institution to non-consensually disclose to an eligible student or to 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.

For a fuller legal analysis and explanation of this issue, please see the 2017 Letter to Wachter.

 

5. If redaction or segregation of an education record of multiple students can be reasonably accomplished without destroying the meaning of the education record, can educational agencies and institutions charge parents or eligible students for the costs of the redaction or segregation?

No. FERPA provides parents and eligible students with the right to inspect and review the student’s education records, and nothing in the FERPA statute or regulations permits educational agencies and institutions to charge parents or eligible students for fees or costs associated with exercising that right.

If a school elects to provide a parent or eligible student with a copy of the education records, then the FERPA regulations (34 CFR § 99.11(a)) generally permit (with the exception noted below) the school to charge for the costs required to make the copy. FERPA regulations (34 CFR § 99.11(b)) also provide that the school may not charge a parent or eligible student for the costs to search for or retrieve the education records. We view the costs, if any, to the school of redacting, or segregating, education records of multiple students as being like the costs of search and retrieval that may not be charged to parents or eligible students, rather than like the costs for copies that generally may be charged to parents and eligible students. As noted above, if an educational agency or institution can reasonably redact or segregate out portions of an education record that is directly related to other students, without destroying the meaning of the record, then the educational agency or institution must do so and therefore cannot charge parents or eligible students for the costs associated with exercising their right to inspect and review such education records.

In contrast, parents and eligible students generally may be charged for the costs of making copies of education records precisely because FERPA generally does not require the school to provide them with such copies. Thus, where the redaction or segregation of education records of multiple students can be reasonably accomplished without destroying the meaning of the education records, nothing in FERPA permits educational agencies or institutions to charge parents or eligible students for the costs of making the required redactions or segregation. Please note that the FERPA regulations (34 CFR § 99.11(a)) similarly provide that if a fee for copies effectively prevents a parent or an eligible student from exercising the right to inspect and review his or her education records, an educational agency or institution would be required to provide copies without payment. Such cases would be limited to a parent or an eligible student providing evidence of the inability to pay for the copies due to financial hardship.

 

6. Does FERPA permit legal representatives of parents or eligible students to inspect and review videos with the parent or eligible student?

Yes. FERPA permits legal representatives of a parent or an eligible student to inspect and review videos with the parent or eligible student. While FERPA does not require educational agencies and institutions to allow parents or eligible students to bring their attorney or other legal representative with them when they exercise their right to inspect and review the student’s education records, nothing in FERPA prevents educational agencies and institutions from allowing parents or eligible students to bring their attorney or other legal representative with them when they exercise their right to inspect and review the student’s education records under FERPA.

 

7. Does FERPA permit educational agencies and institutions turn over videos to the police upon request or following an incident that may warrant police involvement?

If the law enforcement unit of an educational agency or institution creates and maintains videos for a law enforcement purpose, then the videos would not be education records and FERPA would not prohibit the law enforcement unit of an educational agency or institution from disclosing the videos to the police. If the videos are education records, however, educational agencies and institutions may not turn over videos to the police upon request without having first either obtained the written consent of the parent or eligible student or determined that the conditions of an exception to the general requirement of consent have been met, such as if the disclosure is made in connection with a health or safety emergency (20 U.S.C. 1232g(b)(1)(I) and 34 CFR §§ 99.31(a)(10) and 99.36) or the law enforcement officer has presented the educational agency or institution with a judicial order or a lawfully issued subpoena (20 U.S.C. 1232g(b)(1)(J) and (b)(2) and 34 CFR § 99.31(a)(9)).

 

 

 

[1] The Individuals with Disabilities Education Act (IDEA) also contains privacy protections that apply to children with disabilities. 20 U.S.C. 1417(c) and 34 CFR §§ 300.610-300.626 and 34 CFR §§ 303.401-303.416. Under the IDEA, participating agencies must protect the personally identifiable information (PII), data, or records that are collected, maintained, or used by the participating agency. While the definition of “education record” under Part B of the IDEA cross-references the FERPA definition in 34 CFR § 99.3, the application of IDEA requirements may raise different questions.

[2] If circumstances effectively prevent the parent or eligible student from otherwise exercising their right to inspect and review the student’s education records (e.g., if the parent lives outside of commuting distance to the school), then the educational agency or institution would be required to either provide a copy of the records or to make other arrangements for the parent or eligible student to inspect and review the records. 34 CFR § 99.10(d)

How are Military Recruiter requirements under 10 U.S.C. § 503 enforced?

In addition to the potential for loss of funds under ESEA for failure to comply with § 9528 of the ESEA, an LEA that denies a military recruiter access to the requested information on students after July 1, 2002, will be subject to specific interventions under 10 U.S.C. § 503.  

In this regard, the law requires that a senior military officer (e.g., Colonel or Navy Captain) visit the LEA within 120 days.  If the access problem is not resolved with the LEA, the Department of Defense must notify the state’s Governor within 60 days.  Problems still unresolved after one year are reported to Congress, if the Secretary of Defense determines that the LEA denies recruiting access to at least two of the armed forces (Army, Navy, Marine Corps, etc.).  The expectation is that public officials will work with the LEA to resolve the problem.  

Additionally, the Department of Defense has developed a national high school data base to document recruiter access.  Presently, 95 percent of the nation’s 22,000 secondary schools provide a degree of access to military recruiters that is consistent with current law. 

How does a school know when a health or safety emergency exists so that a disclosure may be made under this exception to consent?

An educational agency or institution must make this determination on a case-by-case basis, taking into account the totality of the circumstances pertaining to a threat to the health or safety of a student or others.  If the school determines that there is an articulable and significant threat to the health or safety of a student or other individuals and that a third party needs personally identifiable information (PII) from education records to protect the health or safety of the student or other individuals, it may disclose that information to appropriate parties without consent. 

How does § 544 of the National Defense Authorization Act for Fiscal Year 2002 amend the former Military Recruiter requirements under 10 U.S.C. § 503?

The law’s recruiting provisions apply only to LEAs (including private secondary schools) that receive funds under the ESEA.  These provisions require access by military recruiters to students, under certain conditions, and to secondary school students’ names, addresses, and telephone listings.  They also require LEAs to notify parents of their right to opt out of the disclosure of their children’s names, addresses, and telephone numbers and to comply with any such requests from the parents or the students.

How long does an educational agency or institution have to comply with a request to view records?

FERPA requires that educational agencies and institutions comply with a request by a parent or eligible student for access to education records within a reasonable period of time, but not more than 45 days after receipt of a request.  Some States have laws that may require that parents and eligible students be granted access in a shorter time period.  34 CFR § 99.10(b).

How long must the Child Welfare Agency (CWA) or tribal organization maintain the education records of a child, and what must the CWA or tribal organization do with the education records when no longer needed?

Some of the FERPA exceptions to consent require the recipient of education records to destroy personally identifiable information (PII) from education records when it is no longer needed.  We recommend that the school or LEA and the CWA or tribal organization work together to determine how long the CWA or tribal organization should maintain the education records disclosed under the exception.  For example, the CWA or tribal organization could use its standard records retention and destruction guidelines or return the records to the disclosing school or LEA.  Further, CWA and tribal organizations should be aware of the potential consequences of improperly redisclosing PII from the education records that are received from the school or LEA under the FERPA exception. 

How may a parent or eligible student file a FERPA complaint with the Department of Education?

A parent or eligible student may file a written complaint with the Family Policy Compliance Office regarding an alleged violation under of FERPA.  The complaint must be timely (submitted to the office within 180 days of the date that the complainant knew or reasonably knew of the violation) and state clearly and succinctly specific allegations of fact giving reasonable cause to believe that the school has violated FERPA.

I want to use online tool or application as part of my course. However, I am worried that it is a violation of FERPA. What should I do?

A teacher should first check with their school/district administration to see if that application or service is approved for use in the classroom.  Any applications or services that collect personally identifiable information (PII) from students’ education records under the school officials exception to prior consent in FERPA must:

  • Provides a service or function that the school would otherwise use its own staff
  • Be under the direct control of the school with regard to the use and maintenance of the PII from education records
  • Collection and use of the PII must be consistent with the school or district’s annual notification of rights under FERPA
  • Not re-disclose or use the education data for unauthorized purposes.

Remember that the use of some applications or services may introduce security or privacy vulnerabilities into the school or districts IT systems.  Teachers should always consult their IT representatives to discuss the use of these types of software tools prior to use to ensure compliance with FERPA requirements and promote a safe, secure computing environment. 

If a parent opts out of the public, non-consensual disclosure of directory information (or any subset of such information), must the three data elements be released to military recruiters upon their request?

If a parent opts out of providing directory information to third parties, the opt-out relating to name, address, or telephone number applies to requests from military recruiters as well.  For example, if the opt-out states that telephone numbers will not be disclosed to the public, schools may not disclose telephone numbers to military recruiters.