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2001 Opinions

Date:   October 31, 2001
Prepared By:   Charles S. Ruberg
Phone:   (850) 488-7707
Suncom:   278-7707
Opinion No.:   01-19
Staff Contact:   None
MEMORANDUM OPINION
TO: Beverly A. Morris, P.L.,
Attorney for School District of Marion County
FROM: James A. Robinson, General Counsel
SUBJECT: Student Photographs; Release Without Consent
RE: Request for Opinion; Letter of May 17, 2001

QUESTIONS PRESENTED:

  1. Whether student photographs published in yearbooks are confidential and exempt from Chapter 119, F.S., or are available to the public upon request either as public records or as "directory information" pursuant to Sec. 228.093, F.S.?

  2. Whether the School Board can photograph a student and release or publish such photograph publicly (e.g., publicity and yearbook photos) on the strength of the fact that the parent does not object following annual notice similar in content and procedure to the notice regarding directory information required by Sec. 228.093(3)(d)(13), F.S.?

CONCLUSION:

  1. Your inquiry addresses the release of student photographs in the following situations:

    1. Photographs which are included in student yearbooks.
    2. Photographs made and disseminated by the school district to publicize a praiseworthy student activity or action.
    3. Photographs made and disseminated by the press at the invitation of the school district to publicize a praiseworthy student activity or action.

    As to all three situations a reasonable argument can be made that the photographs are not within the definition of "records" and "reports" in Sec. 228.093(2)(e), F.S. However, the definition does not restrict itself to material in each student's cumulative folder. The definition expressly includes "identifying information," of which a photograph would appear to be a clear example. The definition must be read in pari materia with the express right of privacy in Sec. 228.093(3)(d). Additionally, the second and third situations are especially dependent on specific facts.

    Under such circumstances, and in the absence of decisional law or legislative clarification or both, we do not believe it appropriate to issue a legal opinion in support of either conclusion. Rather, we believe this issue is one that must either be adjudicated by a court of competent jurisdiction or resolved by legislative action.

  2. The release of the publicity and yearbook photographs referred to in the second inquiry is an issue of first impression for us. Our research does not disclose any case or statute addressing the question whether or not student photographs are, under any circumstances, confidential student records and reports. The issue is one of mixed fact and law. Under such circumstances, we do not believe it would be appropriate for us to offer a legal opinion in support of either conclusion. The same holds true as to whether or not Sec. 540.08, F.S. (prohibiting unauthorized publication of name or likeness under certain circumstances), applies to such photographs.

DISCUSSION: The research notes accompanying your inquiry refer to Opinion No. 89-070, previously issued by this Office. Upon review, the principles presented in that opinion remain valid today. In summary, to the extent a student's photograph or written work is a "record" or "report" as defined in Sec. 228.093(2)(e), F.S., prior written consent must be obtained before such materials may be released to a newspaper or school publication. Additionally, general rights of privacy are protected under the Florida decisional law with the use of photographs, portraits, and other likenesses receiving statutory protection pursuant to Sec. 540.08, F.S.

However, the prior opinion did not address your specific question as to whether students' photographs published in yearbooks are available to the public as directory information or as public records. Section 228.093(3)(d), provides that "personally identifiable records or reports of a student, and any personal information contained therein, are confidential and exempt from the provisions of s. 119.07(1)." Accordingly, it is clear that student photographs within the records maintained by a public educational institution are not subject to disclosure as a public record. Furthermore, being expressly "confidential," they can be disclosed only under the conditions and circumstances provided by law.

In accordance with the right of privacy established in Sec. 228.093(3)(d), F.S., written consent is required. However, that requirement does not prohibit "any educational institution from publishing and releasing to the general public directory information relating to a pupil or student if the institution elects to do so." This brings the analysis to bear on the specific issue of whether the student photographs published in a yearbook are directory information.

Pursuant to s. 228.093(2)(c), F.S.:

"Directory information" includes the pupil's or student's name, address, telephone number if it is a listed number, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the pupil or student."

Section 228.093, F.S., which applies to the Florida system of public education, is analogous to 20 U.S.C. §1232g (FERPA), a federal statute that applies to educational agencies and institutions that receive federal financial assistance. Both statutes define, and include provisions regarding the release of, directory information.

The U.S. Department of Education has adopted a regulation that interprets the federal statute and states the definition of directory information as follows:

"Directory information means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but it not limited to, the student's name, address, telephone listing, electronic mail address, photograph, date and place of birth, major field of study, dates of attendance, grade level, enrollment status (e.g., undergraduate or graduate; full-time or part-time), participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees, honors and awards received, and the most recent educational agency or institution attended (emphasis supplied)."

Please note those elements of the federal definition, which are not present in the Florida definition. First, the federal definition expressly includes "photograph" as a category of directory information. Second, the federal definition provides that the directory information categories are "not limited to" the listed ones. Third, the federal definition characterizes directory information as generally not "considered harmful or an invasion of privacy."

In its 2001 Session, the Florida Legislature considered, but did not enact, CS/SB 192. Among other things the bill included an amended definition of directory information which would have conformed the Florida definition to the federal definition as to two of the aforesaid three elements. The proposed amended definition is provided below in the format in which struck through words are intended to be deleted and underlined words are intended to be added to the existing definition.

"(c) "Directory information" means information contained in an educational record of a student which would not generally be considered harmful or an invasion of privacy if disclosed, including includes the pupil's or student's name, address, telephone number if it is a listed number, electronic mail address, photograph, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees, honors, and awards received, and the most recent previous educational agency or institution attended by the pupil or student."

The Legislature's failure to enact the bill may or may not be based on its rejection of the expanded definition of directory information-specifically, that a photograph is directory information. Or perhaps the Legislature rejected the bill for other reasons and will reconsider the matter in the 2002 Session. However, until the Legislature enacts such an amendment, we are unable to issue a legal opinion to the effect that, under Florida law, photographs are directory information.

If photographs are subject to the provisions of s. 540.08(1), F.S., the school district must obtain "express written or oral consent" to release them. If photographs are not subject to Sec. 540.08(1), F.S. or fall within the exemptions in Sec. 540.08(3), F.S., the consent is not required.

Section 540.08, F.S., clearly applies to the press. The press is not required to obtain the "express oral or written consent" mandated by Sec. 540.08(1), F.S., when the photograph or name is published "as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes." See, Sec. 540.08(3)(a), F.S.

We offer no opinion as to whether or not the school district, by inviting or permitting the press to take and publish student photographs, subjects itself to liability under this section. See, Sec. 540.08 (2), F.S. However, we respectfully suggest you carefully consider the possible risks associated with such a practice.

As to the applicability of Sec. 540.08, F.S., to the school district when the press is not involved, a cogent argument can be made one way or the other. One can argue that the statute applies only to commercial activities, which would not include the publicizing of praiseworthy student activities and actions. Or one can argue that the statute prohibits such publication to the extent it has an "advertising purpose." The statutory prohibition refers to publication of a natural person's name, portrait, photograph, or other likeness without express oral or written consent for the following purposes: "trade or for any commercial or advertising purpose" (emphasis supplied). Use of the disjunctive term "or" indicates an intention that each purpose is separate from the others and has its own scope of operation.

As noted above, the pro and con arguments are so close that either conclusion would be burdened by a high degree of uncertainty. Accordingly, we believe it would not be appropriate for us to render a legal opinion in support of either conclusion.

We recommend that you consider seeking written parental waiver at the beginning of each school year covering photographs (e.g., classroom, field-trip and yearbook pictures).

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