“The Education Code provides that student records are ordinarily not available to the general public. (Rim of the World Unified School Dist. v. Superior Court (2002) 104 Cal.App.4th 1393, 1396.) “‘A school district is not authorized to permit access to pupil records to any person without written parental consent or under judicial order’ except in certain situations not relevant here.” (Id.) “California law defines ‘pupil records’ as ‘any item of information directly related to an identifiable pupil, other than directory information, which is maintained by a school district....’” (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 752.)

Under Statutory Law

“As with California law, the federal Family Educational Rights and Privacy Act (FERPA) provides for the privacy of education records.(Rim of the World Unified School Dist. v. Superior Court, supra, 104 Cal.App.4th at p. 1397.)

‘Education records’ are defined as documents which ‘contain information directly related to a student’ or ‘are maintained by an educational agency or institution....’” (Id.)

In addition to the right of privacy reflected in these statutes, the right of privacy set forth in article I, section 1 of the California Constitution also protects a person’s educational records. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 832.) As a result, plaintiff’ right of privacy protects disclosure of her high school records. (Id.)

“When the right to discovery conflicts with a privileged right, the court is required to carefully balance the right of privacy with the need for discovery.” (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) “The proponent of discovery of constitutionally protected material has the burden of making a threshold showing that the evidence sought is ‘directly relevant’ to the claim or defense.” (Id.)

Under the Constitution

The right to privacy is expressly guaranteed by Article 1, Section 1 of the California Constitution and, as interpreted by the courts, extends to various types of personal information. See, John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198 (a litigant may invoke the constitutional right to privacy as justification for refusing to disclose personal information). Privacy protections are also provided by Education Code Sections 49076 and 49077, which require written consent or a court order before school administrators can disclose student information. Here, Tyler has asserted his privacy rights with regard to his school records, including all related medical records, psychological records, and disciplinary records. In their separate motion, Fourmy and Granziera have asserted their right to privacy with regard to the same records. The parents contend that any discussions they had with school administrators regarding Tyler’s “behavior, conduct, performance, discipline, attendance, and truancy,” and any “parent/teacher conference records and reports” directly implicate their privacy rights.

Definition of “Pupil Records”

California law defines “pupil records” as “any item of information directly related to an identifiable pupil, other than directory information, which is maintained by a school district....” (Ed.Code, Sec. 49061(b).) FERPA defines “education records” in nearly identical terms. (20 U.S.C. Sec. 1232g (a)(4)(A).)

Implementing regulations promulgated by the state Department of Education further explain the term: “ ‘Pupil Record’ means information relative to an individual pupil gathered within or without the school system and maintained within the school system, regardless of the physical form in which it is maintained. Essential in this definition is the idea that any information which is maintained for the purpose of second party review is considered a pupil record.” (Cal.Code Regs., tit. 5, § 430, subd. (d).)”

Under Education Code Sec. 49076

“(a) A school district shall not permit access to pupil records to a person without written parental consent or under judicial order except as set forth in this section and as permitted by Part 99 (commencing with Section 99.1) of Title 34 of the Code of Federal Regulations.”

Evidence Code § 49076 (c) provides:

“(c)(1) A person or party who is not permitted access to pupil records pursuant to subdivision (a) or (b) may request access to pupil records as provided for in paragraph (2).

(2) A local educational agency or other person or party who has received pupil records, or information from pupil records, may release the records or information to a person or party identified in paragraph (1) without the consent of the pupil's parent or guardian pursuant to Section 99.31(b) of Title 34 of the Code of Federal Regulations, if the records or information are deidentified, which requires the removal of all personally identifiable information, if the disclosing local educational agency or other person or party has made a reasonable determination that a pupil's identity is not personally identifiable, whether through single or multiple releases, and has taken into account other pertinent reasonably available information.”

Case Law on Point

In BRV, Inc. v. Super. Ct. (2006) 143 Cal.App.4th 742 the court considered whether the documents constituted “pupil records” under the statute, and observed:

California law defines “pupil records” as “any item of information directly related to an identifiable pupil, other than directory information, which is maintained by a school district....”

(Id. at 752 citing Ed. Code, Sec. 49061(b) and stating FERPA defines “education records” in nearly identical terms. (20 U.S.C. Sec. 1232g,(a)(4)(A).).

The court of appeal concluded that the investigator’s report did not fit within the cases construing “pupil records” stating in relevant part:

“Certainly the language of the statute, though broadly written, does not encompass every document that relates to a student in any way and is kept by the school in any fashion. (Id. at 754.) “A pupil record is one that ‘directly relates’ to a student and is ‘maintained’ by the school.” Id. “We agree with the Supreme Court that the statute was directed at institutional records maintained in the normal course of business by a single, central custodian of the school. Typical of such records would be registration forms, class schedules, grade transcripts, discipline reports, and the like.”

(Id.)

“For all of the above reasons, we conclude the Davis report and its accompanying summaries were not pupil records within the meaning of Education Code sections 49061 and 49076.” (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 754-755.)