School Photos and Student Data Privacy with F3 Law

When can a school district share student photos or student data? There may not always be a clear, cut and dry answer. We’ll dig into the nuances of the Family Educational Rights and Privacy Act (FERPA) and walk through how it applies today. 

Matthew recently sat down with Gretchen Shipley from F3 Law to discuss the legal aspects of photography in schools and student data privacy. Here’s what Gretchen had to say when Matthew asked some hot topic questions around school photos. 


Q: When can a school district share a photo?

• A lot of times, like with school yearbook photos, those photos can be classified as directory information. Directory information is something that does not require parent permission each and every time it is shared. For example, things like a student’s name, age, photo etc.
  • However, in order to classify a student photo as directory information, that has to be included in an annual notice to parents.
  • Gretchen mentioned that every year school districts send out an annual notice to parents in which they outline and establish what is included in directory information and what qualifies.
  • Additionally, it is important to note that FERPA is from the 1960s and in its original state, they weren’t thinking about the implications related to the internet or social media.
    • Gretchen recommended the annual notice be updated to clarify if social media and the website are included. It is up to the discretion of the school district, but it still needs to be expressly stated so parents have the option to an informed opt out. There needs to be expressed permission in advance or else it is a FERPA violation.
    • When in doubt, spell it out.

Q: Who can directory info be shared with?

• Types of organizations that can receive directory information should be outlined in their annual notice sent out to parents.
  • Typically the types of organizations are district-affiliated 
    

Q: Are smiley faces or “stickers” over faces acceptable?

• Technically, FERPA says school districts can't share the student’s image, so adding smiley faces over a student’s face could be acceptable but it is important to understand that doing so can create a secondary issue. 
  • Is that student being ostracized or discriminated against because they’re now being labeled as a kid who has opted out or has an extra level of privacy?
  • While this may be an acceptable course of action, it is important to check with your local legal team. Additionally, if you ever are in doubt, try to use a different photo and/or delete the questionable photo altogether. 
    

Q: Why would a parent want to opt out of directory information? 

• There’s a legal right for a parent to have their child opted out.
• Oftentimes it comes down to student safety.
  

Q: How do you recommend school districts adhere to that opt out process?

• Parents/guardians have a legal right to opt their child out of data or photo sharing.
• Again, Gretchen mentioned the importance for school districts to have a clear definition of what they are using student data for and a clear method for parents and guardians to opt out.
• Additionally, opt outs should be recorded and easily accessible for teachers and staff.
  • Especially in case a teacher or staff member takes a group classroom photo and has students that may need to not be included if to be posted publicly.
    

Q: Taking photos around campus—can staff and parents share those on their personal pages? 

• Staff are school district employees and need to follow the same rules as a school district. Their posts can be taken as posting and speaking on behalf of the district.
• One thing that can get hard is the distinction that FERPA protects personally identifiable student records. That doesn’t protect crowds or group photos.
  • So, theoretically things like graduation, the football game, an audience in an auditorium are not protected under FERPA
    

Q: Is there an expectation of privacy at a public event or in a public place? 

• Gretchen conceded: Not really. It is a public school, public school, public event.
• Again, as a school you can indicate in your notices to the community that there is not much that a school district can do to prohibit group photos at a public event.
  • School districts can also offer the concession that if it is a photo of a student solo at a play or talent show to ask for guardian permission before posting it publicly. 
    

Q: Any advice for when people won’t stop taking pictures from the sidewalk? 

• This can be characterized as a safety issue. So, even though the “photographer” is in a public place, school districts can involve the police who can issue a stay away order.
• At the end of the day, student safety and creating a safe school environment is important so there can be legal arguments against things like this in order to protect students.