Department of Education Releases Guidance on Photos and Videos as Student Education Records

The Family Policy Compliance Office of the U.S. Department of Education recently issued a guidance document entitled, “FAQs on Photos and Videos under FERPA” (“FAQ”). According to the FAQ, a photo or video of a student is an “education record,” as defined by the Family Educational Rights and Privacy Act (“FERPA”), when the photo or video is directly related to a student and is being maintained by an educational institution or by a party acting for the educational institution.

The FAQ states that a photo or video is “directly related to a student,” pursuant to the FERPA definition of an education record, when a photo or video meets any of the following criteria:

• it was used by the educational institution for a disciplinary or otherwise official action;
• it depicts an activity that resulted in the institution’s disciplinary or otherwise official action, shows a student in violation of the law, or shows a student experiencing a physical threat (e.g., getting injured, attacked, victimized, ill, etc.);
• the student is the intended focus of the person taking the video or photo (e.g., in the case of a student ID photo); or
• the audio or visual content of the video or photo contains personally identifiable information otherwise contained in a student’s educational record. 

The guidance makes clear, however, that a photo or video is not considered “directly related to a student” if the student’s image in the photo or video is captured as part of the background or when a student is participating in school activities that are open to the public and there is not an intended focus on any student. When considering such criteria it is important to remember that pursuant to FERPA, a photo or video that is not being “maintained by the educational institution” does not qualify as an “education record” which would require inspection by the student’s parent or guardian (or the student, if the student is an eligible student).

The FAQ also tackles an important real-life school scenario, namely how an educational institution is to treat a photo or video that serves as an education record of multiple students. The FAQ states that if a video is an education record of multiple students, the educational institution must permit parents (or the student if the student is an eligible student) to inspect only the portion of the video that relates to their child. Accordingly, the educational institution must – when necessary and at no charge to the parents – redact portions of the photo or video showing other students, so long as such redacting does not destroy the meaning of the record. In the case where redacting is not possible or where it would destroy the meaning of the record, the educational institution must recognize the rights of all parents of the students directly related to the video to review such. While the FAQ does not discuss parameters on a parent’s or eligible student’s inspection and viewing of such photos and videos as education records, this guidance document does not alter an educational institution’s ability to require a signed confidentiality form prior to allowing parents or eligible students to view a photo or video that is an education record of multiple students.

Educational institutions may already have policies and procedures in place regarding the treatment of photos and videos as education records.  However, in light of this FAQ guidance, we encourage educational institutions to review their current practices and procedures to ensure their educational institution is treating photos and videos that constitute education records appropriately. 

Prior to making any revisions to existing policies and procedures or adopting new policies, procedures, and/or practices in this regard, we encourage you to contact your Robbins Schwartz attorney(s) to ensure your procedures are consistent and conform to FERPA and the FAQ guidance.