We often get questions on the hotline about obtaining security footage of newsworthy incidents that occur in or around K-12 schools or on school buses. Because these incidents almost inevitably involve students, it can be difficult to access information, but there are arguments you can make to get as many public records as possible when you are covering these stories.
The most common argument you will hear from a school district or “local educational authority” (LEA) as to why they cannot give you a public record that involves a student is that “FERPA” prevents the release. FERPA, which stands for the Family Educational Rights and Privacy Act, is a federal rather than state law. (20 U.S.C. § 1232g) In the K-12 setting, FERPA is the law that protects a parent’s right to keep their child’s public school “education records” private. FERPA also gives the parent access to those records. Keep in mind that because FERPA conditions receipt of federal funds on schools' providing parents with access to their children's education records, it does not apply in a private school setting – only to public and charter schools.
When reporting on school-related incidents and trying to obtain school security footage, FERPA is undoubtedly a high hurdle to clear. However, it’s not always an insurmountable one, and it’s important to be aware of the basics so you can know when to push back.
What are “education records”? FERPA tells us that education records are “records, files, documents, and other materials which contain information directly related to a student and are maintained by an educational agency or institution.” Under FERPA, schools can release certain “directory information” about a student, which can include a K-12 student’s name, address, telephone number, date and place of birth, and participation in officially recognized activities and sports. And FERPA provides that “‘education records’ does not include “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.” As you likely remember, our North Carolina public records law includes “all documents, papers, letters, maps, books, photographs, films, sound recordings…made or received … in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.”
What happens when an education record is also a public record under the North Carolina public records law? How FERPA interplays with North Carolina’s public record’s law has rarely been litigated in our state courts. Although it often is, bus and security footage is not automatically an “education record” just because student images appear in footage. As Judge Howard Manning said more than 10 years ago in deciding a media lawsuit against UNC, “FERPA does not provide a student with an invisible cloak so that the student can remain hidden from public view … .”
The potential conflict between these two statutes – FERPA federal, public records state – arises when, say, there is a newsworthy incident on a school bus or on school property that is captured by security cameras. The footage is recorded and maintained by the local school system and is certainly a public record under the meaning of our public records law. Because it involves a federally funded K-12 public school, it also falls under the purview of FERPA. When a reporter from a local news station requests the footage, the request is denied, and the reporter is told that the record is not a public record due to FERPA. However, each request should be taken on a case by case basis, and LEA or charter school should always endeavor to release as much information as possible to satisfy the public records law while not running afoul of FERPA.
For example, if the footage is of certain students having a fight, then it is likely “directly related” to those students and part of their education records. But if the footage depicts a bus accident or some other incident, or if individual students can be anonymized in the footage, then the LEA might still have the obligation under our public records law to provide as much as the footage as possible as long as FERPA can be satisfied. In DTH Media Corp. v. Folt, 374 N.C. 292 (2020), the North Carolina Supreme Court essentially found that if a North Carolina public record can be released under FERPA then it must be released.
If you request footage that you believe is not “directly related” to a student’s education record, and the LEA denies your request citing FERPA, consider pushing back based on your knowledge.
Requesting body-worn camera footage from a school resource officer brings up some of these same issues. Seeking this footage is no different from requesting any other body camera footage from any other police officer, and you should follow the procedure outlined in our column from last month, describing N.C. GEN. STAT. § 132-1.4A(g). Inevitably, you’re going to get pushback involving FERPA. It may be very difficult to get around the FERPA argument in these cases, but it may be worth a try. You can also work with the families of the minors depicted in the videos, who presumably have the right to view the videos, but may not have the right to obtain a copy.
At the end of the day, obtaining footage involving minors that was filmed in a school or on a school bus is an uphill battle, but that doesn’t always mean it’s an impossible fight. If you’re trying to obtain security footage, can you argue that the footage doesn’t depict any specific identifiable student or that it doesn’t relate to that student’s education record? Can the footage be easily anonymized? Also consider if there are any public records related to the incident that do not contain specific student information. If so, those are public records that should be released. Or if the records have student names that can be removed easily, request the records minus the names. Whenever a public body can satisfy our public records law without running afoul of FERPA, we should always make sure that they do so. While FERPA does offer strong privacy protections for students and families, local educational authorities should be striving to comply with our North Carolina public records law to the greatest extent whenever possible.