Alert April 8, 2010
Practice Group Leader
Dana L. Abrahams
Jeremy S. Motz
of Photos or Videos of
receive requests from the news media or other sources for photos or
videos of students engaged in school-related activities -
participating in an athletic contest, for example, acting in a
school play, or a host of other activities. What requirements
does the Family Educational Rights and Privacy Act - FERPA - impose
upon such a request?
On March 26,
Michigan Attorney General Mike Cox issued an Opinion addressing
schools' obligations under FERPA when confronted with such a
request. The Opinion addressed three related questions.
In the first, the Opinion considered whether such photos or videos
are "education records" subject to the protections of
FERPA. If they are maintained by a school or district, or
someone acting on their behalf, the answer is "yes."
FERPA defines "education records" as records that contain
information "directly related" to a student that are
maintained by an educational institution or a person acting for the
institution. Although "directly related to a student"
is not defined in the Act itself, FERPA links the prohibition of
disclosure of education records to "personally identifiable
information" contained in those records. The Regulations
that accompany FERPA provide that "personally identifiable
information" is that which, alone or in combination with other
information, "is linked or linkable to a specific student that
would allow a reasonable person in the school community, who does not
have personal knowledge of the relevant circumstances, to identify
the student with reasonable certainty." Photos or videos
of students clearly fit within that definition. Thus,
assuming they are maintained by a school or district or by an
individual acting on the school or district's behalf, photos or
videos of students engaged in a school-related activity are
"education records" protected by FERPA.
next addressed whether photos or videos that qualify as
"education records" may nevertheless be designated as
"directory information," and thus disclosed without written
consent of the student (if over 18) or the student's parent.
The answer is "yes" - if the school has previously
disclosed that photos or videos would be treated as directory
information (and assuming no objections to disclosure by an eligible
student 18 or older or parent/guardian). Though FERPA itself
does not list photos or videos as directory information, the list of
directory information identified in the statute is non-exclusive,
since the statute says only that "directory information"
"includes" certain specified information. The
Regulations expand the statutory definition of "directory
information" to include a student's photograph; and since that
list is also non-exclusive, a video recording can also be designated
as "directory information." Directory information,
however, may be released without express permission only if the
school or district has identified the types of information that will
be treated as directory information, has published that list, and has
allowed parents a reasonable opportunity to opt out of production of
such information related to their children. If photos and
videos have been, or are in the future, identified as directory
information, they may then be released without further parental
Opinion addressed whether photos or videos of a student participating
in a school activity taken by someone not acting for the school or
district - such as a newspaper photographer - are subject to
protection by FERPA. The answer is "no." FERPA
applies only to "educational agencies or institutions."
If a recording is not generated by - or subsequently maintained by -
an educational agency or institution, it is not protected by
FERPA. Thus, pictures taken by parents or visitors are not
subject to FERPA's regulations.
In a footnote,
Attorney General Cox emphasized that his Opinion dealt solely with
the requirements of FERPA, and observed, correctly, that the creation
and use of images of students may implicate other privacy or property
rights. These other rights should be considered by districts
before releasing student images, even if they fit the district's
definition of "directory information." If you have
any questions about these issues, or need assistance responding
to requests for photos or videos of students, please contact
your Clark Hill Education Law attorney.
information about the content of this Education Law Update, please
contact John Gierak. To find out more about Clark Hill and our
Education Law team, visit clarkhill.com
or call 800.949.3124