1. Can we keep a video camera going in the room to monitor the behavior?

Tex. Educ. Code, Section 26.009 governs videotaping of students. In general, an employee must obtain written parental consent before making or authorizing the making of a videotape of a child. T.E.C. Section 26~009(a)(2). There are certain exceptions to the consent requirement:

An employee of a school district is not required to obtain the consent from a child's parent before the employee may make a videotape of a child or authorize the recording of a child's voice if the videotape or voice recording is to be used only for:

• purposes of safety, including the maintenance of order and discipline in common areas of the school or on school buses;
• a purpose related to a cocurricular or extracurricular activity;
• a purpose related to regular classroom instruction; or
• media coverage of the school. T.E.C. Section 26.009(h)

Circumstances in which it might be permissible under T.E.C. Section 26.009(b)
are as follows:

• The regular education classrooms on the campus also have continuous videotaping.
• There is a documented safety need for the videotaping. In order to address a real safety concern, the camera would need to be hooked to a monitor that allowed for continuous viewing.

• * ANY TASK / SLC UNIT MAY BE SUBJECT TO CONTINUOUS VIDEOTAPING AT THE DISCRETION OF THE TASK / SLC TEACHER AND PRINCIPAL AS A MEANS OF PROMOTING CLASSROOM SAFETY AND THE MAINTENANCE OF CLASSROOM ORDER AND DISCIPLINE *

• The student's IEPs provide for videotaping as (a) an alternative means of assessment (in that case, the videotaping would not need to be continuous), or (b) as a method of providing feedback to the student regarding his or her behavior. (e.g. part of social skills training or a technique in the BIP).

2. Can we videotape for the purpose of staff development?

Any videotape containing the images of students would be considered an educational record. As such, the videotapes may be viewed with parental consent. Absent parental consent, the school officials viewing the videotape would have to have a "legitimate educational interest" in viewing the education record of the particular students depicted on the videotape. Certainly, the staff working directly with the students would have a legitimate educational interest in viewing the videotapes and receiving training in connection with the students on the videotapes. Other staff; in other programs, however, may not have a legitimate educational interest in viewing the videotape of these students. Although there is no case law or interpretive opinion on this issue, the conservative approach would be to view staff development as insufficient to create a legitimate educational interest, unless the staff will be working with the students depicted on the videotape.

3. Can we videotape for the purpose of documenting student progress?

In order to be able to videotape for the purpose of documenting student progress, this method of measuring progress should be written in the IEP or ARD record. If it is written in the ARD record, as a method of measurement, it is not necessary to obtain written parental consent.

4. Can we videotape for classroom instruction (social skills, etc.)?

Yes. This is videotaping "for a purpose related to regular classroom instruction" (recommend that it be written in the IEP as a possible method of instruction).

5. When must we obtain parent permission?

See response to question #1. The district must obtain parent permission to videotape when the videotape is for a purpose other than safety, regular classroom instruction, a co-curricular or extracurricular activity, or media coverage of the school. Additionally, parent permission must be obtained prior to disclosing the videotape to anyone other than the student or parent, unless authorized as an exception to the consent requirement under the Family Educational Rights and Privacy Act (FERPA).

6. Who can view the above?

• School officials with a legitimate educational interest can view the videotape.
• Other persons/entities listed in the FERPA exceptions to parental consent may view the videotape.
• The parent and/or student may view the videotape only if other students are not depicted on the videotape. Unless the images of other students can be blocked or distorted, the parent and/or student seeking access to the videotape may receive a written summary of its contents.

7. Who can a copy of the above be released to?

See School Board Policy FL (LEGAL) and FL(LOCAL) governing student records. With the written consent of each parent of children depicted in the videotape, a copy can be released to anyone identified on the consent form. The written consent must:

   (1) specify the records that may be disclosed;

   (2) state the purpose of the disclosure;

   (3) identify the party or class of parties to whom the disclosure may be made. 34 C.F.R. Section 99.3O

(b). Additionally, a copy can be released to anyone who is entitled to access under FERPA. That includes school officials with a legitimate educational interest, and non school officials as outlined in the FERPA exceptions to the consent requirement. See Policy FL (LEGAL).

8. Do we ever release the original to anyone?

No.

9. Does the video become part of the educational record?

It is an educational record. If it depicts more than one student, its existence and location should be identified in the individual student's record, but not maintained as part of that individual record. It should be kept in a separate secure location.

10. How long do we keep the videotapes before we erase or destroy them?

It depends on the purpose of the videotape. The Texas State Library and Archives Commission Local Records Retention Schedules provides retention schedules for various categories of school district records. If the videotape was made for the purpose of test and academic measurement (e.g. alternative assessment), it should be retained for 1 year after recording the data in the appropriate achievement record of the student. If the videotape was made for a purpose having to do with instruction and grading, it should be retained for 1 year after entering grades/data in a grade book or record. If the videotape is a discipline record, other than expulsion, it should be retained for as long as administratively valuable. If the videotape is an expulsion record, it should be retained for 3 years. If the videotape constitutes a report of accidents to students, it should be retained for 5 years; or 2 years after the student reaches the age of 18, whichever is later. If the videotape is used as a report to law enforcement or some other enforcement agency, it should be retained for 2 years. Finally, if there is an outstanding FERPA request for the videotape, it may not be destroyed.

11. Where are tapes kept? Are they locked up?

Store in a cool, dry area. They should be secured in the same manner as other education records. An access log should be maintained with the videotape(s).

12. What do we do about releasing a tape to others that has students other than
    the one student in question?

This is the major drawback to videotaping. If the videotape depicts more than one student, it cannot be released unedited to one parent without the consent of the other parent(s). FERPA provides "If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about the student."

When a request is made:

• Seek consent of the other parents to release the entire videotape;
• Without altering the original videotape, determine if a copy can be edited to remove footage containing other students;
• With respect to sections that cannot be edited, provide a written summary of the contents of the videotape.