Clark Hill

Education Law Alert  April 8, 2010 

 

Education Law Practice Group Leader

 

John L. Gierak

248.988.5845

 

 

Contributor

 

  

 McInerney b&w

313.965.8383

 

 



 

Education Law Practice Group
Members

Dana L. Abrahams

Roderick S. Coy

James M. Crowley

John L. Gierak

Kurt M. Graham 

Marshall W. Grate

Edward C. Hammond

Mark W. McInerney

Daniel H. Minkus 

William A. Moore 

Jeremy S. Motz
Nancy L. Mullett

Kevin M. Nalu

Barbara A. Ruga

Roger A. Swets

Alan D. Szuma

Joseph E. Turner, Jr. 

Reginald M. Turner, Jr.

Joseph B. Urban

Ann L. VanderLaan 

 

 

Education Law Alert 

 

Does FERPA Permit Release
of Photos or Videos of Students?

by Mark W. McInerney

 

Schools often 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.

 

The Opinion 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 consent.

 

Finally, the 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.

 

 

 

For further 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

 

 

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