BILL ANALYSIS
SENATE JUDICIARY COMMITTEE A
Charles M. Calderon, Chairman B
1995-96 Regular Session
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AB 1721
Assemblymember Ducheny
As amended on July 7, 1996
Hearing Date: July 9, 1996
Education
JK
STUDENT RECORDS
SUBPOENA AND NOTICE
HISTORY
Source: San Diego Community College District
Related Pending Legislation: SB 1821 (Marks)
Prior Vote: Assembly Higher Education: 6 - 0
Assembly Appropriations: 17 - 0
Assembly Floor: 74 - 0
Senate Education Committee: 7 - 0
KEY ISSUE
SHOULD A SCHOOL DISTRICT OR COMMUNITY COLLEGE DISTRICT BE
ABLE TO FURNISH STUDENT INFORMATION PURSUANT TO A LAWFULLY
ISSUED SUBPOENA?
PURPOSE
The purpose of this bill is to authorize districts to
furnish student information pursuant to a subpoena in order
to conform California law to federal law.
1. Existing law allows a school district or a community
college district to furnish information concerning a
student in compliance with a court order. (Sections 49077
and 76244 of the Education Code) Such entities shall make
a reasonable effort to notify the parent and the pupil in
AB 1721 (Ducheny)
Page 2
advance of such compliance if lawfully possible within the
requirements of the judicial order. ( Id.)
The Family Educational Rights and Privacy Act of 1974
provides that student records may be furnished in
compliance with a judicial order, or pursuant to any
lawfully issued subpoena, upon condition that parents and
the student are notified of all such orders or subpoenas in
advance of the compliance therewith by the educational
institution or agency. (20 U.S.C. Section 1232g(b)(2))
This bill allows a school district or a community college
district to furnish information concerning a student in
compliance with a lawfully issued subpoena.
COMMENT
Should a school district or community college district be
able to furnish student information pursuant to a lawfully
issued subpoena?
The author argues that by allowing a district to furnish
information pursuant to a lawfully issued subpoena, it will
simply conform California law to federal law.
Supporters of this measure argue that the question of
whether Californiaos school and community college districts
may respond to attorney issued subpoenas for student
records, or whether they may only provide such information
in response to a court order has unnecessarily plagued
Californiaos schools, colleges and attorneys for several
decades now.
Sections 49060 and 76200 of the Education Code provide in
pertinent part the following:
o It is the intent of the Legislature to resolve
potential conflicts between California law and the
provisions of Public Law 93-380 (Education
Amendments of 1974; 20 U.S.C.A. 1232g) regarding
parental access to, and the confidentiality of,
pupil records in order to insure the continuance
of federal education funds to public educational
institutions with the state and to revise the
generally and update the law relating to such
records.o
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Although the apparent intent of the Legislature is to
conform state law to federal law, there is a plausible
argument that California law should remain as is. A court
order, which is more tenuous to obtain, is also more likely
to be protective of student records than a subpoena.
However, a subpoena also provides certain protections to a
student that a court order does not. Under existing law, a
person who serves a subpoena duces tecum to seek the
production of "personal records" of a "consumer" which are
maintained by a "witness" must give notice to the affected
consumer by delivering a copy of the subpoena, the
affidavit supporting the issuance of the subpoena, and a
specified notice to the consumer. (Civil Procedure Code
Section 1985.3)
This rule applies to the subpoenaing of a person's
"personal records" from the person's physician . . . .or a
private or public preschool, elementary school, or
secondary school. (Section 1985.3(a))
Any consumer whose personal records are sought by a
subpoena duces tecum may seek to quash or modify it by a
motion filed with the court prior to the date specified for
production on the subpoena. (Section 1985.3(g))
Therefore, this bill would provide that a student would
receive notice regardless if the records were sought to be
obtained either thru a court order or a subpoena. However,
with a subpoena the student would have the opportunity to
quash the motion if he or she felt as if his or her privacy
interests were being violated.
SB 1821
This committee passed SB 1821 (Marks) which provided for
the following:
Under existing law, any consumer whose personal records are
sought by a subpoena duces tecum may seek to quash or
modify it by a motion filed with the court prior to the
date specified for production on the subpoena.
SB 1821 would limit the applicability of this rule to a
consumer who is a party to the civil action in which the
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subpoena duces tecum is being served.
For non-party consumers whose personal records are the
subject of a subpoena duces tecum, the bill would authorize
these other consumers to serve on the requesting party and
witness a written objection to the subpoena duces tecum
which states the specific grounds on which production of
the personal records should be prohibited. Upon the
service of a written objection, a witness is not required
to produce the person's personal records except pursuant to
a court order or an agreement of all parties to the
subpoena.
The party issuing the subpoena may bring a motion to
enforce the subpoena
within 20 days of service of the non-party's written
objection. The motion must be accompanied by a declaration
which showing a reasonable and good faith attempt to reach
an informal resolution of the dispute between the
requesting party and the consumer.
Support: San Diego Community College District; Atkinson,
Andelson, Loya, Ruud, & Romo
Opposition: None known
Prior Legislation: None known
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