District Administration - February 2012 - (Page 56)

ThE LEgAL IMpLIcATIonS of Surveillance cameras ConTInuEd institutions that receive federal funding, including public schools, to protect the confidentiality of student education records and the personally identifiable information contained in them. FERPA also provides parents and eligible students access to these records. Images recorded by cameras can under some circumstances constitute education records under FERPA. Open-records laws. All states have adopted laws similar to the federal Freedom of Information Act providing individuals access to public records of state and local governmental agencies. While the breadth of these laws varies across states, the definition of a public record in many states encompasses video images. As a result, the images recorded by surveillance cameras may be subject to disclosure to third parties, including media, seeking access through state open-records laws. Deterring Student Misconduct, Violence Many school administrators believe the use of surveillance cameras deters student misconduct and improves security and the overall school climate. Some students and families, on the other hand, believe that the use of cameras intrudes upon one’s expectation of privacy and that recordings are unreasonable seizures of one’s images. However, courts have generally held that when cameras are placed in public locations in which individuals do not have a reasonable expectation of privacy, there is no Fourth Amendment violation. But when a camera is placed in an area in which a student may have a reasonable expectation of privacy, such as a restroom or locker room, a court may likely find an invasion of privacy. School administrators should be particularly cautious about using surveillance cameras that collect audio recordings in addition to video recordings. The recording of audio conversations is likely to violate Title I of the federal Electronic Communications Privacy Act of 1986 as well as state wiretapping laws. Administrators considering the use of surveillance cameras should: • develop policies that set out the purpose for using surveillance cameras and outline 56 February 2012 the parameters for use; • place cameras only in common areas, like stairwells, and avoid placing cameras in areas where students and staff would have an expectation of privacy; • notify the school community—by including statements in student handbooks and posting signs—that surveillance cameras are located throughout school buildings and that anyone on school property may be videotaped; • and, avoid the use of cameras that record audio conversations. Evaluating and Monitoring Employees In addition to using surveillance cameras to address and deter student misconduct, some school districts have chosen to use surveillance cameras to monitor and evaluate staff in classrooms, in workrooms and in break rooms. Although school employees have challenged the use of surveillance cameras for these purposes as an infringement on their Fourth Amendment right to be free from an unconstitutional search or seizure, courts have generally held that school employees do not have a reasonable expectation of privacy in classrooms, workrooms, break rooms or other areas that are readily accessible to other employees. Before using surveillance cameras to monitor staff, school administrators are smart to consult with legal counsel about defining the purpose for obtaining the footage, establishing guidelines for implementing a surveillance system, and communicating with staff about the program. Access to Recordings Most of the time, surveillance recordings capture nothing other than images of students and staff traveling to and from their destinations. There is little reason for districts to preserve the images. But when recordings capture misconduct, such as a student fight or theft, school administrators may wish to maintain the recordings as part of their investigation and may wish to use the recordings in disciplinary proceedings against the student. When the recording is maintained by the school for disciplinary purposes such as these, the recording will likely qualify as an education record under FERPA. If so, the parents of the students who are subject to discipline are entitled to view the recording. Likewise, school administrators are obligated to protect the confidentiality of the recording from third parties. But if local media become aware of an incident and request to view the recording, is the recording a public record that must be disclosed to the media? Are school officials required to obtain consent from the parents of all the students in the recording? Whether the recording is subject to disclosure will depend on several factors: • the events and images recorded; • the purpose for which the recording has been maintained; • whether the recording is maintained by school officials or by a law enforcement unit of the school; • the requirements of the state’s openrecords laws, specifically whether a recording constitutes a public record; • if the recording qualifies as a FERPAprotected education record; and • whether the district has the technology to redact images, such as blurring faces, of students who may be identified. Typically, FERPA-protected education records are excepted from the disclosure requirements of open-records laws. So if the recording is maintained by school officials as an education record because, for instance, it contains images of a student in an altercation, the district’s obligations under FERPA to protect the confidentiality of the recording will, in most cases, override its open-records obligations. Sometimes a district would like to disclose a surveillance tape, but is prohibited from doing so, and sometimes a district would prefer not to disclose a tape, but is obligated to do so. Whether or not a recording qualifies as an education record and to whom it may or must be disclosed should be reviewed on an individualized basis, taking into account all the factors. DA Amy M. Steketee is a former public school educator who practices school law and labor and employment law at Faegre Baker Daniels in South Bend, Ind. District Administration

Table of Contents for the Digital Edition of District Administration - February 2012

District Administration - February 2012
Contents
From the Editor
News Update
District Profile
Administrator Profile
Conversations
Product Focus
What Can U.S. Schools Learn From Foreign Counterparts?
A New Prescription for Fighting Drug Abuse
The Game Changer
The Legal Implications of Surveillance Cameras
CIO News
Mobile Devices Drive Creative Instruction
Products
Crisis Response
Professional Opinion
Problem/Solution
New Directions

District Administration - February 2012