January 31, 2001

Mr. Mike Mather
NewsChannel 3
Norfolk, VA

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).[fn1] 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.

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 20 U.S.C.A. §1232g (1998).