As the myriad of FERPA interpretation issues continues to cloud many educators’ understanding of what is permissible and not permissible under the statute, some assistance was recently provided by the U.S. Department of Education. The Family Policy Compliance Office (FPCO) advises that as with any other “education record,” a photo or video of a student is an education record, subject to specific exclusions, when the photo or video 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. The issue has been in regards to defining when a record is in fact directly related to a student, and when it is not. This threshold is important because a record not related to a student is not subject to FERPA restrictions. As this has been an ongoing point of confusion, FPCO’s policy requires a case-by-case analysis that focuses on whether the school photograph or video was directly related to a particular student or merely incidentally related. Examples of videos or photos that are most likely deemed directly related are as follows: (i) the photo or video is being used in a disciplinary capacity involving the student or victim; (ii) the photo or video shows the student involved in an illegal activity; (iii) the photo or video shows the student getting injured or attacked, or having a health emergency; (iv) the person taking the photo or video is intending to take an image of that specific student (i.e., ID photos or recording a student presentation); or (v) the image otherwise includes personally identifiable information. It is important to remember that only images captured by the school agents have FERPA applicability, thus, parents photographing students playing in a school basketball game would not be covered by FERPA. Although these policies do provide some clarification for educators, the subjective case-by-case nature of the policy will continue to raise questions until the courts have had an opportunity to digest and rule on the circumstances and applicability of these clarifications.
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