FERPA Guidance for Videos and Photos

The U.S. Department of Education has provided the guidance below as a part of its “Protecting Student Privacy” resource to highlight important considerations and best practices to effectively protect student privacy and ensure compliance with FERPA.

When is a photo or video of a student an education record under FERPA?

A photo or video of a student is an education record if it 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.”

There are a few factors that can help administrators determine if a photo or video is directly related to a student, including: (1) if it is used for disciplinary action involving the student, (2) if it contains a depiction of an activity that shows a student in violation of a law, (3) if it shows a student getting injured, attacked, or having a health emergency, (4) if the person taking it intends to make a specific student the focus, or (5) if the content contains personally identifiable information that is contained in a student’s education record.

A photo or video is not considered directly related to a student (and is thus not an education record for him or her) if the above factors are missing, the student is participating in school activities that are open to the public, or if the student’s image is only part of the background and/or not the specific focus.

Examples of videos that qualify as education records include surveillance video of a fight that is used for disciplinary action, a classroom recording showing a student having a health emergency, and a video recording of a faculty meeting during which a specific student’s grades are discussed.

In addition to being directly related to a student, an institution must maintain the photo or video to become an education record. This means, for example, that if a parent takes a photo at a football game showing two students fighting, that photo taken by and maintained outside SUU is not an education record unless the photo is provided to the school, which then maintains it in the students’ disciplinary records.

There is one exception to keep in mind, which is that FERPA “excludes from the definition of education records those records created and maintained by a law enforcement unit of an educational agency or institution for a law enforcement purpose.” However, if a copy of the record is shared with other units within the educational institution and meets the criteria of an education record, then it would become one.

Can the same recorded image be the education record of more than one student under FERPA?

Yes. An example of this could be a surveillance video of a fight involving two students that the school maintains to discipline the students. This would be directly related and an education record for both students.

If a video is an education record for multiple students, can an eligible student view the video?

FERPA requires that eligible students, which are students over the age of 18 or enrolled at a higher education institution, be allowed, upon their request, to inspect and review or “be informed of” the contents of any video that directly relates to them and is maintained by the institution. This allowance to inspect does not include a right to have a copy.

When the video is an education record for multiple students, the institution is required to “redact or segregate out the portions of the video directly related to other students” if it is reasonable to do so without destroying the meaning of the record. If a redaction is not reasonably possible, however, an eligible student to whom the video directly relates has a right to inspect and review the entire record “even though it also directly relates to other students.”

If a video is an education record for multiple students, can an eligible student receive a copy of the video?

While FERPA does require that video education records be available to eligible students for inspection, it does not require institutions to provide a copy.  

If redaction or segregation of an education record of multiple students can be reasonably accomplished without destroying the meaning of the education record, can educational agencies and institutions charge eligible students for the costs of the redaction or segregation?

No. Eligible students have the right to inspect and review their  education records without fees or costs. While a school sometimes is permitted to charge for the costs of making a copy, SUU generally does  not charge for any costs of redacting or segregating a video.

Does FERPA permit legal representatives of parents or eligible students to inspect and review videos with the parent or eligible student?

FERPA also does not require institutions to allow students to bring an attorney or legal representative. If SUU chooses to allow a representative to accompany the student, that is not a FERPA violation, provided that other students’ records are not disclosed to the third party.

Does FERPA permit educational agencies and institutions to turn over videos to the police upon request or following an incident that may warrant police involvement?

If the law enforcement unit of the education institution has created and maintained videos for law enforcement purposes, FERPA would allow these videos to be disclosed to police. If, however, the videos are education records, they may not be turned over to police unless the institution has received express written consent from the student or determined that an exception applies, such as when there is a health or safety emergency or it is necessary to comply with a judicial order or lawfully issued subpoena.Generally, law enforcement need a subpoena to access University records. 

Do faculty members need to receive a FERPA release in order to write a letter of recommendation for a student?

If a letter of recommendation will contain non-directory information, such as disciplinary status, GPA, T Number, social security number, grades/exam scores, or standardized test scores, then a written release is recommended if the letter is to be sent to another educational institution and required if the letter is to be sent to an employer or any other source. If a student requests a letter of recommendation that may include non-directory information, please have the student fill out and return the SUU Release for Letter of Recommendation before completing the letter.