STATE OF NEW YORK
________________________________________________________________________
6059--A
2013-2014 Regular Sessions
IN ASSEMBLY
March 13, 2013
___________
Introduced by M. of A. O'DONNELL, MILLMAN, JAFFEE, BENEDETTO, LIFTON,
DUPREY, TITONE, MAISEL, HEVESI, ZEBROWSKI, ENGLEBRIGHT, WEPRIN, STECK,
ABINANTI, MONTESANO, SCHIMMINGER, RAIA, GIBSON, COLTON, BRENNAN,
FINCH, McDONOUGH, P. LOPEZ, COOK, SCHIMEL, SKOUFIS, BRAUNSTEIN,
MALLIOTAKIS, BROOK-KRASNY, MOSLEY, GUNTHER, CUSICK, PAULIN, GOLDFEDER,
FAHY, GABRYSZAK, BORELLI, WEINSTEIN -- Multi-Sponsored by -- M. of A.
ABBATE, ARROYO, BUTLER, CLARK, CROUCH, CYMBROWITZ, DenDEKKER, DINOW-
ITZ, GALEF, GARBARINO, GLICK, GOTTFRIED, JACOBS, KEARNS, LENTOL,
MARKEY, McDONALD, PERRY, RIVERA, SIMANOWITZ, SOLAGES, STEC, SWEENEY,
WEISENBERG -- read once and referred to the Committee on Education --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the education law, in relation to the release of
personally identifiable student information
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The education law is amended by adding a new section 3212-b
2 to read as follows:
3 § 3212-b. Release of personally identifiable information. 1. Defi-
4 nitions. As used in this section:
5 (a) the terms "disclosure," "education program," "education records,"
6 "eligible student," "parent," "party," "personally identifiable informa-
7 tion," "record," and "student" shall have the same meaning as those
8 terms are defined in 34 CFR Part 99.3;
9 (b) the term "institution" shall mean any public or private elementary
10 or secondary school or an institution that provides education to
11 students beyond the secondary education level; secondary education shall
12 have the meaning set forth in subdivision seven of section two of this
13 chapter;
14 2. Limitations on access to, or disclosure of, personally identifiable
15 information. (a) Authorized representatives. The department and district
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09672-04-3
A. 6059--A 2
1 boards of education shall only designate parties that are under their
2 direct control to act as their authorized representatives to conduct any
3 audit or evaluation, or any compliance or enforcement activity in
4 connection with legal requirements that relate to state or district
5 supported educational programs, when any such audit, evaluation or
6 activity requires or is used as the basis for granting access to
7 personally identifiable student information;
8 (b) Outsourcing. The department, district boards of education and
9 institutions may not disclose personally identifiable information from
10 education records of students without the written consent of eligible
11 students or parents to a contractor, consultant, or other party to whom
12 an agency or institution has outsourced institutional services or func-
13 tions unless that outside party:
14 (1) performs an institutional service or function for which the
15 department, district board of education, or institution would otherwise
16 use employees;
17 (2) is under the direct control of the agency or institution with
18 respect to the use and maintenance of education records;
19 (3) limits internal access to education records to those individuals
20 that are determined to have legitimate educational interests;
21 (4) does not use the education records for any other purposes than
22 those explicitly authorized in its contract;
23 (5) does not disclose any personally identifiable information to any
24 other party:
25 (i) without the prior written consent of the parent or eligible
26 student, or
27 (ii) unless required by statute or court order and the party provides
28 a notice of the disclosure to the department, district board of educa-
29 tion, or institution that provided the information no later than the
30 time the information is disclosed, unless providing notice of the
31 disclosure is expressly prohibited by the statute or court order;
32 (6) maintains reasonable administrative, technical and physical safe-
33 guards to protect the security, confidentiality and integrity of
34 personally identifiable student information in its custody;
35 (7) uses encryption technologies to protect data while in motion or in
36 its custody from unauthorized disclosure using a technology or methodol-
37 ogy specified by the Secretary of the U.S. Department of Health and
38 Human Services in guidance issued under section 13402(h)(2) of Public
39 Law 111-5;
40 (8) has sufficient administrative and technical procedures to monitor
41 continuously the security of personally identifiable information in its
42 custody;
43 (9) conducts a security audit annually and provides the results of
44 that audit to each department, district board of education, or institu-
45 tion that provided educational records;
46 (10) provides the department, district board of education, or institu-
47 tion with a breach remediation plan acceptable to the department,
48 district board of education or institution prior to initial receipt of
49 education records;
50 (11) reports all suspected security breaches to the department,
51 district boards of education, or institution that provided education
52 records as soon as possible but not later than forty-eight hours after a
53 suspected breach was known or would have been known by exercising
54 reasonable diligence;
55 (12) reports all actual security breaches to the department, district
56 boards of education, or institution that provided education records as
A. 6059--A 3
1 soon as possible but not later than twenty-four hours after an actual
2 breach was known or would have been known by exercising reasonable dili-
3 gence;
4 (13) in the event of a security breach or unauthorized disclosures of
5 personally identifiable information, pays all costs and liabilities
6 incurred by the department, district boards of education, or insti-
7 tutions related to the security breach or unauthorized disclosure,
8 including but not limited to the costs of responding to inquiries about
9 the security breach or unauthorized disclosure, of notifying subjects of
10 personally identifiable information about the breach, of mitigating the
11 effects of the breach for the subjects of personally identifiable infor-
12 mation, and of investigating the cause or consequences of the security
13 breach or unauthorized disclosure; and
14 (14) destroys or returns to the department, district boards of educa-
15 tion, or institutions all personally identifiable information in its
16 custody upon request and at the termination of the contract.
17 (c) Studies. The department, district boards of education, or insti-
18 tutions may disclose personally identifiable information from an educa-
19 tion record of a student without the consent of eligible students or
20 parents to a party conducting studies for, or on behalf of, educational
21 agencies or institutions to:
22 (1) develop, validate, or administer predictive tests;
23 (2) administer student aid programs; or
24 (3) improve instruction;
25 Provided that the outside party conducting the study meets all of the
26 requirements for contractors set forth in paragraph (b) of this subdivi-
27 sion;
28 (d) Commercial use prohibited. The department, district boards of
29 education and institutions may not, without the written consent of
30 eligible students or parents, disclose personally identifiable informa-
31 tion from education records to any party for a commercial use, including
32 but not limited to marketing products or services, compilation of lists
33 for sale or rental, development of products or services, or creation of
34 individual, household, or group profiles; nor may such disclosure be
35 made for provision of services other than contracting, studies, and
36 audits or evaluations as authorized and limited by paragraphs (b) and
37 (c) of this subdivision. Any consent from an eligible student or parent
38 must be signed by the student or parent, be dated on the day it was
39 signed, not have been signed more than six months prior to the disclo-
40 sure, must identify the recipient and the purpose of the disclosure, and
41 must state that the information will only be used for that purpose and
42 will not be used or disclosed for any other purpose.
43 3. Data repositories and information practices.
44 (a) The department and district boards of education may not, directly
45 or through contracts with outside parties, maintain personally identifi-
46 able information from education records without the written consent of
47 eligible students or parents unless maintenance of such information is:
48 (1) explicitly mandated in federal or state statute; or
49 (2) administratively required for the proper performance of their
50 duties under the law and is relevant to and necessary for delivery of
51 services; or
52 (3) designed to support a study of students or former students,
53 provided that no personally identifiable information is retained on
54 former students longer than five years after the date of their last
55 enrollment at an institution.
A. 6059--A 4
1 (b) The department and district boards of education shall publicly and
2 conspicuously disclose on their web sites and through annual electronic
3 notification to the chairs of the assembly and senate education commit-
4 tees the existence and character of any personally identifiable informa-
5 tion from education records that they, directly or through contracts
6 with outside parties, maintain. Such disclosure and notifications shall
7 include:
8 (1) the name and location of the data repository where such informa-
9 tion is maintained;
10 (2) the legal authority which authorizes the establishment and exist-
11 ence of the data repository;
12 (3) the principal purpose or purposes for which the information is
13 intended to be used;
14 (4) the categories of individuals on whom records are maintained in
15 the data repository;
16 (5) the categories of records maintained in the data repository;
17 (6) each expected disclosure of the records contained in the data
18 repository, including the categories of recipients and the purpose of
19 such disclosure;
20 (7) the policies and practices of the department or the district
21 boards of education regarding storage, retrievability, access controls,
22 retention, and disposal of the records;
23 (8) the title and business address of the department or district board
24 of education official who is responsible for the data repository, and
25 the name and business address of any contractor or other outside party
26 maintaining the data repository for or on behalf of the department or
27 the district board of education;
28 (9) the procedures whereby eligible students or parents can be noti-
29 fied at their request if the data repository contains a record pertain-
30 ing to them or their children;
31 (10) the procedures whereby eligible students or parents can be noti-
32 fied at their request how to gain access to any record pertaining to
33 them or their children contained in the data repository, and how they
34 can contest its content; and
35 (11) the categories of sources of records in the data repository;
36 (c) The department, district boards of education, and institutions may
37 not append education records with personally identifiable information
38 obtained from other federal or state agencies through data matches with-
39 out the written consent of eligible students or parents unless such data
40 matches are: (1) explicitly mandated in federal or state statute; or (2)
41 administratively required for the proper performance of their duties
42 under the law and are relevant to and necessary for delivery of
43 services.
44 4. Penalties and enforcement. (a) Each violation of any provision of
45 this section by an organization or entity that is not the department, a
46 district board of education, or an institution as defined in paragraph
47 (b) of subdivision one of this section shall be punishable by a civil
48 penalty of up to one thousand dollars; a second violation by the same
49 organization or entity involving the educational records and privacy of
50 the same student shall be punishable by a civil penalty of up to five
51 thousand dollars; any subsequent violation by the same organization or
52 entity involving the educational records and privacy of the same student
53 shall be punishable by a civil penalty of up to ten thousand dollars;
54 and each violation involving a different individual educational record
55 or a different individual student shall be considered a separate
56 violation for purposes of civil penalties;
A. 6059--A 5
1 (b) The attorney general shall have the authority to enforce compli-
2 ance with this section by investigation and subsequent commencement of a
3 civil action, to seek civil penalties for violations of this section,
4 and to seek appropriate injunctive relief, including but not limited to
5 a prohibition on obtaining personally identifiable information for an
6 appropriate time period. In carrying out such investigation and in main-
7 taining such civil action the attorney general or any deputy or assist-
8 ant attorney general is authorized to subpoena witnesses, compel their
9 attendance, examine them under oath and require that any books, records,
10 documents, papers, or electronic records relevant or material to the
11 inquiry be turned over for inspection, examination or audit, pursuant to
12 the civil practice law and rules; subpoenas issued pursuant to this
13 paragraph may be enforced pursuant to the civil practice law and rules.
14 (c) Nothing contained herein shall be construed as creating a private
15 right of action against the department, a district board of education,
16 or an institution as defined in paragraph (b) of subdivision one of this
17 section.
18 5. Administrative use. Nothing in this section shall limit the admin-
19 istrative use of education records by a person acting exclusively in the
20 person's capacity as an employee of a school, a district board of educa-
21 tion or of the state or any of its political subdivisions, any court or
22 the federal government that is otherwise required by law.
23 § 2. This act shall take effect July 1, 2014 and shall apply to school
24 years beginning with the 2014-2015 academic year.
