FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. Mike Mather
The staff of
the Freedom of Information Advisory Council is authorized
to issue advisory opinions. The ensuing staff advisory opinion
is based solely upon the information presented in your e-mail
of January 11, 2001.
Dear Mr. Mather:
You have asked whether
you may access videotapes recorded by a camera mounted in
a school bus. You indicate that in October 2000, two school
buses were involved in an accident, and you wish to view the
videotapes in order to gauge the reaction of the students
on the bus to the accident. Your request was denied by the
school, citing the scholastic records exemption of the Virginia
Freedom of Information Act (FOIA) as well as the federal Family
Educational Rights and Privacy Act of 1974 (FERPA).1
You ask if the videotape is a scholastic record under both
FOIA and FERPA.
In § 2.1-341, FOIA
defines a scholastic record as one containing information
directly related to a student and maintained by a public body
which is an educational agency or institution or by a person
acting for such agency or institution. Subdivision A.
3. of § 2.1-342.01 allows a public body to withhold scholastic
records containing information concerning identifiable individuals.
Unless the parent of a child under the age of eighteen prohibits,
in writing, the release of identifiable information concerning
his child, the exemption is discretionary and the public body
may withhold the scholastic record.
In addition to this
state law, the federal requirements of FERPA are also relevant.
FERPA's definition of education records parallels FOIA's scholastic
record definition. FERPA defines education records as records,
files, documents, and other materials which (i) contain information
directly related to a student; and (ii) are maintained by
an educational agency or institution or by a person acting
for such agency or institution. However, unlike FOIA,
the decision as to whether to release education records is
not left to the discretion of the public body. Any educational
institution that receives public funding is prohibited from
releasing any educational records without the written consent
of the parents. If a school makes an unauthorized release,
that institution will loose its federal funding.
The answer to your
question, therefore, hinges on whether the videotape from
the school bus constitutes a scholastic or educational record
under FOIA and FERPA. In your inquiry, you note that you do
not believe that the tape is a scholastic record because the
cameras were installed on the bus to detect violations of
law and policy and thus the tape does not have a direct bearing
on education. I do not agree with your assessment of the tape,
and conclude that videotapes recorded by cameras mounted in
school buses are scholastic records.
For the purposes
of this discussion, assume that during school a child committed
an act such as hurting another student. The resulting disciplinary
action taken by the school would become a part of that student's
educational record. In support of this assertion, subdivision
A. 2. of § 2.1-344, from the open meetings provisions of FOIA,
exempts discussions of disciplinary matters concerning
any student of ...any state school system. It logically
follows then that records of disciplinary action would likewise
be exempt under the scholastic records exemption. The event
may have taken place in the classroom or on the playground,
and although it may not be directly related to education in
the sense that it does not involve grades or academic performance,
it nonetheless relates to that student and would become a
part of that student's record. To take this discussion a step
further, now assume the act took place on the school bus instead
of at school. Again, this would be a disciplinary matter to
be addressed by the school, since it involved the student
while under the custody and care of the school system in its
transportation of students. A videotape of the incident would
be directly related to the disciplinary action pursued against
that student, and would be a scholastic or education record.
Matters of concern to a school are not confined to events
that transpire only on school grounds.
The situation you
present does not involve the discipline of students. However,
I hope that I have demonstrated how a videotape of a student
on a school bus could be a relevant part of a student's scholastic
or educational record. In that same vein, if a videotape would
be a scholastic record for disciplinary purposes, it would
also be a scholastic record for other purposes. In examining
the parallel definitions set forth in FOIA and FERPA, one
cannot construe them one way in one situation, and another
way in a different situation. A videotape either is or is
not a scholastic record -- its status does not vary based
upon the fact-specific scenario.
Returning to FOIA
and FERPA, the two requirements in deciding if a record fits
the definition set forth in both are whether it contains information
directly related to a student and is in the custody of a educational
agency. Both of these requirements are clearly met here. The
videos are directly related to the students in that they contain
the identifiable image of the students on the bus, and they
are in the custody of that particular school district. Therefore,
in order to access the videotapes and satisfy the requirements
of FERPA, which prohibits their release, you would need to
obtain the written consent of a parent of every student identified
on the videotape. After that consent has been obtained, the
school system would no longer have grounds to withhold the
video under either FERPA or FOIA.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett
U.S.C.A. §1232g (1998).