A Picture Is Worth a Thousand Words, But Is It Always a Student Record?

Earlier this month, the Family Policy Compliance Office (FPCO) released updated guidance clarifying when pictures and videos containing images of students are education records under the Family Educational Rights and Privacy Act (FERPA). FERPA, which is a federal law, grants parents and eligible students privacy and access rights to “education records.” Under FERPA, an education record is a record that 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. Illinois has a state law analog to FERPA, the Illinois School Student Records Act (ISSRA). In place of FERPA’s use of “directly related to a student,” ISSRA defines a student record (its term for education record) as any recorded information by which a student may be individually identified. Generally speaking, however, what is an education record under FERPA is also a student record under ISSRA.

Because the term “directly related” is not defined in FERPA or its regulations, the FPCO guidance directs school officials to make a case-by-case determination as to whether a specific photograph or video is “directly related” to a student. The same picture or video can be the educational record of more than one student, but generally speaking, the less of a focus on any one student the record has, the less likely it is to be an education record under FERPA.

Factors to consider when deciding whether a record is “directly related” to a student or students include whether: the school is using the photo or video for disciplinary action involving a student as offender or victim; the record depicts an activity that is illegal; the record depicts a student being victimized or having a health emergency; a specific student is the focus of the record, or the record contains otherwise personally identifiable information.

Where a student is only incidentally in the photograph or video and the above factors are not present, the record should not be considered an education record. Additionally, where the record depicts the student, who is not specifically the focus of the picture or video, participating in school activities open to the public, it is not an education record. Photos or videos of students participating in public events may be designated as directory information.

A photograph or video must also be “maintained by” the school to be an education record. The FPCO’s guidance clarifies that where a video or photograph taken by a third party is given to the school as evidence of, say, a disciplinary violation, it then becomes an education record.

Videos or photographs created and maintained by the school that is education records cannot be turned over to the police unless a regulatory exception, such as the presence of a health or safety emergency or the issuance of a court order, is met, or the parent has consented. Videos or photographs that are created and maintained by law enforcement are not education records. However, as with videos or photographs taken by parents, where law enforcement shares such a record with the school, it may become an education record.

Where a photograph or video is the education record of multiple students and a parent requests access to the record, the school must redact or segregate portions of the record that directly relate to other students to the extent possible. Parents cannot be charged for the redaction of an education record. If redaction cannot be reasonably accomplished, the parent has the right to access the entire record. Under FERPA, a school is not required to provide parents with a copy of education records. ISSRA, however, grants parents the right to a copy of student records; where a video cannot be redacted but a parent is requested a copy, we advise seeking further guidance from counsel. Parents may be charged for the cost of making copies, except in cases of financial hardship.

This guidance from the FPCO reflects an analysis of federal law. The analysis under ISSRA is similar, but not identical. As such, districts should seek guidance when releasing photographs or videos.