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Who’s watching who? And who can review?

School administrators frequently grapple with the treatment of video recordings. From Constitutional issues to concerns about education records, administrators need to be aware of how to use surveillance cameras appropriately and how to respond to requests for copies of those video recordings. As more and more districts are using video surveillance in schools, this issue promises to remain a big issue for districts into the foreseeable future.

First, the Fourth Amendment protects students from unreasonable searches while on school grounds.  Video cameras should only be utilized in common areas such as hallways, parking lots, cafeteria, or other such areas where the expectation of privacy is low; otherwise the district may run afoul of the Fourth Amendment. For example, in Brannum v. Overton County School Board, 516 F.3d 489 (6th Cir. 2008), the district posted video cameras outside of the boys’ and girls’ locker rooms, but the cameras were positioned in such a way that they captured images of students undressing. In addition, the images were available online, and had been hacked into approximately one hundred times by non-school personnel during the six months the cameras were in use. The Court determined that the use of video cameras in this case violated students’ right to privacy under the Fourth Amendment. Districts should also be cautious about using cameras that record audio, as such recording would likely violate federal and state wiretapping laws.

Perhaps an even thornier issue, as there is currently no clear, official guidance from the Family Policy Compliance Office (FPCO), involves the treatment of videotapes as education records under the Family Education Rights and Privacy Act (FERPA). FPCO did produce a letter to the Berkeley County School District, 104 LRP 44490, in 2004 which briefly touches on this issue. That letter stated that when a video captures two or more students fighting, a parent does not have the right to inspect and review that portion of the videotape that pertains to the other student.

Recently, however, FPCO has issued informal guidance about how districts should be treating videos of students. Since video surveillance captures everything that occurs in an area, it is not information directly related to any one student and therefore a video is generally not an education record. However, when video surveillance captures a student committing an act that is in violation of the code of conduct (e.g. stealing from another student’s locker, distributing drugs, etc.) that results in discipline, only that portion of the video showing the misconduct would be that student’s education record. FPCO indicated that if more than one student is involved (e.g. two students fighting), then that portion of the video is an education record of both students. Since videos cannot be easily redacted, a parent of any involved student would be allowed to view the video, but would not receive a copy of the video, unless the parent of the other student has provided written consent. Such a video would not be an education record for any student who was merely present at the scene. However, if the district uses the video to identify witnesses, that portion of the video should be treated as a witness statement and would be an education record of the witness student.  Additionally, if a district videotapes a basketball game, for example, the video would be considered an education record for those students playing in the game, but not for students sitting in the crowd. But if a fight breaks out in the crowd, the principles discussed above would apply.

Of course, if the law enforcement unit of a school (e.g. the school resource officer or security guards) maintains the videotapes, they would not be considered education records within the meaning of FERPA. However, such a scenario creates additional problems, as the videotapes may then be public records subject to disclosure under Freedom of Information Act requests. At least two courts (one in New York and one in Washington State) have held that videotapes of students are surveillance videos used to maintain the security and safety of the school building, and are therefore public records, not education records. While neither of those decisions is binding on districts in Connecticut, and the issue has yet to be litigated in our jurisdiction, districts should be aware of these decisions as they discuss and create policies about video surveillance in schools.