NY Educ L § 2-D (2021)
2021 New York Laws EDN - Education Title 1 - General Provisions Article 1 - Short Title and Definitions 2-D - Unauthorized Release of Personally Identifiable Information.

§ 2-d. Unauthorized release of personally identifiable information. 1. Definitions.  As used in this section the following terms shall have the following meanings:   a. "Building principal" means a building principal subject  to  annual performance  evaluation  review  under  the  provisions of section three thousand twelve-c of this chapter.   b. "Classroom teacher" means a teacher subject to  annual  performance evaluation  review  under  the  provisions  of  section  three  thousand twelve-c of this chapter.   c. "Educational agency" means a school district, board of  cooperative educational services, school, or the education department.   d.  "Personally identifiable information," as applied to student data, means personally identifiable information as defined in section 99.3  of title  thirty-four  of  the code of federal regulations implementing the family educational  rights  and  privacy  act,  section  twelve  hundred thirty-two-g  of title twenty of the United States code, and, as applied to teacher or principal data, means "personally identifying information" as such term is used  in  subdivision  ten  of  section  three  thousand twelve-c of this chapter.   e. "School" means any public elementary or secondary school, universal pre-kindergarten  program  authorized  pursuant  to  section  thirty-six hundred two-e of this chapter, an approved provider of preschool special education, any other publicly funded pre-kindergarten program, a  school serving  children in a special act school district as defined in section four thousand one of this chapter, an approved private  school  for  the education  of  students  with  disabilities,  a  state-supported  school subject to the provisions of article eighty-five of this chapter,  or  a state-operated  school subject to the provisions of article eighty-seven or eight-eight of this chapter.   f. "Student" means any person attending or seeking  to  enroll  in  an educational agency.   g. "Eligible student" means a student eighteen years or older.   h.  "Parent"  means  a  parent,  legal guardian, or person in parental relation to a student.   i. "Student  data"  means  personally  identifiable  information  from student records of an educational agency.   j.   "Teacher   or   principal  data"  means  personally  identifiable information from the records of an educational agency  relating  to  the annual   professional  performance  reviews  of  classroom  teachers  or principals that is confidential and not subject  to  release  under  the provisions of section three thousand twelve-c of this chapter.   k.  "Third  party  contractor"  shall mean any person or entity, other than an educational agency, that receives student  data  or  teacher  or principal  data  from  an  educational  agency pursuant to a contract or other written agreement for  purposes  of  providing  services  to  such educational  agency,  including  but  not  limited to data management or storage  services,  conducting  studies  for  or  on  behalf   of   such educational  agency, or audit or evaluation of publicly funded programs. Such term shall include an  educational  partnership  organization  that receives student and/or teacher or principal data from a school district to  carry  out  its  responsibilities  pursuant  to  section two hundred eleven-e of this title and is not an educational agency  as  defined  in paragraph  c  of  this  subdivision, and a not-for-profit corporation or other non-profit organization, other than an educational agency.   2. Chief privacy officer. a. The commissioner shall  appoint  a  chief privacy  officer  within the department for a term of three years, which may be renewed  for  three-year  terms  thereafter.  The  chief  privacy officer  shall  be  qualified  by  training  or  experience in state and  federal  education  privacy  laws  and  regulations,  civil   liberties, information  technology,  and  information  security.  The chief privacy officer shall report to the commissioner on  matters  affecting  privacy and the security of student, teacher, and principal data.   b.  The  functions of the chief privacy officer shall include, but not be limited to:  (1) promoting the implementation of sound  information  practices  for privacy and security of student data or teacher or principal data;  (2)  assisting the commissioner in handling instances of data breaches as well  as  assisting  the  commissioner  in  due  process  proceedings regarding  any  alleged breaches of student data or teacher or principal data;  (3) providing assistance to educational agencies within the  state  on minimum  standards  and  best  practices associated with privacy and the security of student data or teacher or principal data;  (4) formulating a procedure within  the  department  whereby  parents, students,  teachers,  superintendents, school board members, principals, and other persons or entities the chief privacy  officer  determines  is appropriate,  may  request  information  pertaining  to  student data or teacher or principal data in a timely and efficient manner;  (5) assisting the commissioner in  establishing  a  protocol  for  the submission of complaints of possible breaches of student data or teacher or principal data;  (6)  making  recommendations  as  needed  regarding  privacy  and  the security of student data on behalf of the department  to  the  governor, the  speaker of the assembly, the temporary president of the senate, and the chairs of the senate and assembly education committees; and  (7) issuing an annual report on data privacy and  security  activities and  progress,  the number and disposition of reported breaches, if any, and a summary of any complaint submitted pursuant to  subparagraph  five of this paragraph.   c. The chief privacy officer shall have the power to:  (1)  access  all records, reports, audits, reviews, documents, papers, recommendations, and other materials maintained by an educational agency that relate to student data or teacher or principal data;  (2) to review and  comment  upon  any  department  program,  proposal, grant,  or  contract  that  involves  the  processing of student data or teacher or principal data before the commissioner begins or  awards  the program, proposal, grant, or contract; and  (3) any other powers that the commissioner shall deem appropriate.   3.  Parents bill of rights for data privacy and security. a. A parents bill of rights for data privacy and security shall be published  on  the website  of  each  educational  agency  and shall be included with every contract an educational agency enters into with a third party contractor where the third party contractor receives student  data  or  teacher  or principal data.   b.  The  parents  bill  of  rights for data privacy and security shall state in clear and plain English terms that:  (1) A student's personally identifiable information cannot be sold  or released for any commercial purposes;  (2) Parents have the right to inspect and review the complete contents of their child's education record;  (3)  State  and federal laws protect the confidentiality of personally identifiable  information,  and  safeguards  associated  with   industry standards  and best practices, including but not limited to, encryption, firewalls, and password protection, must be in place when data is stored or transferred;  (4) A complete list of all student  data  elements  collected  by  the State is available for public review at (insert website address here) or by writing to (insert mailing address here); and  (5)  Parents have the right to have complaints about possible breaches of student data addressed. Complaints  should  be  directed  to  (insert phone number, email and mailing address here).   c.  The  parents  bill  of  rights for data privacy and security shall include supplemental information for each contract an educational agency enters into  with  a  third  party  contractor  where  the  third  party contractor  receives  student  data  or  teacher or principal data. Such supplemental information shall be developed by  the  educational  agency and shall include:  (1)  the  exclusive  purposes for which the student data or teacher or principal data will be used;  (2)  how  the  third   party   contractor   will   ensure   that   the subcontractors, persons or entities that the third party contractor will share  the  student data or teacher or principal data with, if any, will abide by data protection and security requirements;  (3) when the agreement expires and what happens to the student data or teacher or principal data upon expiration of the agreement;  (4) if and  how  a  parent,  student,  eligible  student,  teacher  or principal  may  challenge the accuracy of the student data or teacher or principal data that is collected; and  (5) where the student data or teacher or principal data will be stored (described in such a manner  as  to  protect  data  security),  and  the security  protections  taken  to  ensure  such  data  will be protected, including whether such data will be encrypted.   d. The chief privacy  officer,  with  input  from  parents  and  other education  and expert stakeholders, shall develop additional elements of the  parents  bill  of  rights  for  data  privacy  and  security.   The commissioner  shall  promulgate regulations for a comment period whereby parents and  other  members  of  the  public  may  submit  comments  and suggestions to the chief privacy officer to be considered for inclusion. The  parents  bill  of  rights  for  data  privacy and security shall be completed within one hundred twenty days after  the  effective  date  of this section.   4.  Data  collection  transparency and restrictions. a. The department shall promote the least intrusive data collection  policies  practicable that  advance  the  goals  of improving academic achievement, empowering parents with information and advancing efficient  and  effective  school operations   while   minimizing   the  collection  and  transmission  of personally identifiable information.   b. The chief privacy officer shall develop, regularly update and  make publicly   available  on  the  department's  website  and  through  such additional methods as may  facilitate  accessibility  an  inventory  and understandable  description  of  the student, teacher and principal data elements collected  with  an  explanation  and/or  legal  or  regulatory authority outlining the reasons such data elements are collected and the intended uses and disclosure of the data.   c.  Except as otherwise specifically authorized by law, the department shall only collect personally identifiable information  relating  to  an educational purpose.   d.  The  department  may  only  require districts to submit personally identifiable  information,  including  data  on  disability  status  and student  suspensions, where such release is required by law or otherwise authorized under the family  educational  rights  and  privacy  act,  20 U.S.C. section 1232g, and the personal privacy protection law.    e.  Except as required by law or in the case of educational enrollment data, school districts shall not report to the department the  following student data elements:  (1) juvenile delinquency records;  (2) criminal records;  (3) medical and health records; and  (4) student biometric information.   f.  Personally  identifiable  information  maintained  by  educational agencies, including data provided to third-party contractors  and  their assignees, shall not be sold or used for marketing purposes.   g.  Parents  shall  have the right to inspect and review their child's educational record including any student data stored or maintained by an educational agency. The department shall  develop  policies  for  school districts that:  (1)  provide  for  annual  notification  to  parents of their right to request student data;  (2) ensure security when providing student data to parents,  including that only authorized individuals receive such data; and  (3)  specify  a  reasonable  amount  of time in which school districts should respond to such requests.   5. Data security  and  privacy  standards.  a.  The  commissioner,  in consultation   with   the   chief   privacy  officer,  shall  promulgate regulations establishing standards for educational agency data  security and  privacy  policies  and shall develop one or more model policies for use by educational agencies. The commissioner shall seek  the  input  of experts,  including  those  from  security, cyber-security and fields in addition  to  education  that  have  experience   with   personal   data protection, in developing such standards and policies.   b. The standards for data security and privacy policies shall include, but not be limited to:  (1)  data  privacy  protections,  including  criteria  for determining whether a proposed use  of  personally  identifiable  information  would benefit  students and educational agencies, and processes to ensure that personally identifiable information is not included in public reports or other public documents;  (2) data security protections, including data systems monitoring, data encryption, incident response plans, limitations on access to personally identifiable information, safeguards to ensure  personally  identifiable information  is  not  accessed  by unauthorized persons when transmitted over communication networks, and destruction of personally  identifiable information when no longer needed; and  (3)  application of all such restrictions, requirements and safeguards to third-party contractors.   c. Following promulgation of regulations by the commissioner  pursuant to  paragraph a of this subdivision each educational agency shall ensure that it has a policy on data security  and  privacy  in  place  that  is consistent with applicable state and federal laws and applied to student data  and,  where  applicable, to teacher or principal data. Such policy shall be published on the educational agency's website,  if  it  exists, and  notice  of  such  policy  shall  be  provided  to  all officers and employees of the educational agency.   d.  As  applied  to  student  data,  such  policy  shall  provide  all protections  afforded  to parents and persons in parental relationships, or students where applicable,  required  under  the  family  educational rights  and  privacy  act, 20 U.S.C. section 1232g, where applicable the individuals with disabilities education act, sections fourteen  hundred, et  seq.  of  title  twenty  of  the United States code, and the federal regulations implementing such statutes. Each  educational  agency  shall  ensure that it has in place provisions in its contracts with third party contractors  or  in separate data sharing and confidentiality agreements that require that confidentiality of the shared student data or  teacher or principal data be maintained in accordance with federal and state law and the educational agency's policy on data security and privacy.   e.  Each  educational  agency  that  enters  into  a contract or other written agreement with a third party contractor under  which  the  third party  contractor will receive student data or teacher or principal data shall ensure that such contract or agreement includes  a  data  security and  privacy  plan  that outlines how all state, federal, and local data security and privacy contract requirements will be implemented over  the life of the contract, consistent with the educational agency's policy on data  security  and  privacy.  Such plan shall include, but shall not be limited to, a signed copy of the parents bill of rights for data privacy and security, and a requirement that any officers or  employees  of  the third party contractor and its assignees who have access to student data or  teacher  or principal data have received or will receive training on the federal and state law governing confidentiality of such  data  prior to receiving access.   f.  Each  third  party contractor that enters into a contract or other written agreement with an educational agency under which the third party contractor will receive student data or teacher or principal data shall:  (1) limit internal access to education records  to  those  individuals that are determined to have legitimate educational interests;  (2)  not  use  the education records for any other purposes than those explicitly authorized in its contract;  (3)  except  for  authorized  representatives  of  the   third   party contractor  to  the  extent  they  are  carrying  out  the contract, not disclose any personally identifiable information to any other party:  (i) without the prior  written  consent  of  the  parent  or  eligible student; or  (ii)  unless required by statute or court order and the party provides a notice  of  the  disclosure  to  the  department,  district  board  of education,  or  institution  that provided the information no later than the time the information is disclosed, unless providing  notice  of  the disclosure is expressly prohibited by the statute or court order;  (4)   maintain   reasonable  administrative,  technical  and  physical safeguards to protect the security,  confidentiality  and  integrity  of personally identifiable student information in its custody;  (5)  uses  encryption technology to protect data while in motion or in its  custody  from  unauthorized  disclosure  using  a   technology   or methodology  specified  by the secretary of the United States department of  health  and  human  services  in  guidance  issued   under   Section 13402(H)(2) of Public Law 111-5.   6.   Breach   and  unauthorized  release  of  personally  identifiable information. a. Each third party contractor that receives  student  data or  teacher  or  principal  data pursuant to a contract or other written agreement with an educational agency shall be required  to  notify  such educational   agency   of   any  breach  of  security  resulting  in  an unauthorized release of such data by the third party contractor  or  its assignees  in  violation of applicable state or federal law, the parents bill of rights for student data privacy and security, the  data  privacy and   security   policies  of  the  educational  agency  and/or  binding contractual obligations relating to data privacy and  security,  in  the most   expedient  way  possible  and  without  unreasonable  delay.  The educational  agency  shall,  upon  notification  by  the   third   party contractor,  be required to report to the chief privacy officer any such breach of security and unauthorized release  of  such  data.  The  chief  privacy  officer  shall,  upon  belief that such breach and unauthorized release  constitutes  criminal   conduct,   report   such   breach   and unauthorized  release  to  law  enforcement  in  the  most expedient way possible and without unreasonable delay.   b.  In  the  case  of  an  unauthorized  release  of student data, the educational agency shall notify the parent or eligible  student  of  the unauthorized   release   of   student   data  that  includes  personally identifiable information from the student records of such student in the most expedient way possible and without unreasonable delay. In the  case of an unauthorized release of teacher or principal data, the educational agency   shall   notify  each  affected  teacher  or  principal  of  the unauthorized release  of  data  that  includes  personally  identifiable information   from   the  teacher  or  principal's  annual  professional performance review in  the  most  expedient  way  possible  and  without unreasonable delay.   c.  In the case of notification to a parent, eligible student, teacher or  principal  under  paragraph  b  of  this  subdivision  due  to   the unauthorized  release of student data by a third-party contractor or its assignee,  the  third-party  contractor  shall  promptly  reimburse  the educational agency for the full cost of such notification.   d.  Each violation of a third party contractor pursuant to paragraph a of this subdivision shall be  punishable  by  a  civil  penalty  of  the greater  of  five  thousand  dollars  or  up to ten dollars per student, teacher, and principal whose data was released, provided that the latter amount shall not exceed the  maximum  penalty  under  paragraph  (a)  of subdivision  six  of section eight hundred ninety-nine-aa of the general business law.   e. If  the  chief  privacy  officer  determines  that  a  third  party contractor  or its assignee, in violation of applicable state or federal law, the data privacy and security policies of  the  educational  agency provided by such educational agency to the third party contractor and/or binding  contractual  obligations relating to data privacy and security, has released any student data or teacher or principal data received from an educational agency to any person or entity not authorized by  law  to receive  such data pursuant to a lawful subpoena or otherwise, the chief privacy officer, after affording the third party contractor with  notice and an opportunity to be heard, shall be authorized to:  (1)  order that the third party contractor be precluded from accessing student data or teacher or  principal  data,  as  applicable,  from  the educational  agency from which the contractor obtained the data that was improperly disclosed for a fixed period of up to five years; and/or  (2) order that a third party contractor or assignee who  knowingly  or recklessly  allowed  for  the  unauthorized  release  of student data or teacher or principal data be precluded from accessing  student  data  or teacher or principal data from any educational agency in the state for a fixed period of up to five years; and/or  (3)  order  that a third party contractor or assignee who knowingly or recklessly allowed for the  unauthorized  release  of  student  data  or teacher  or  principal  data shall not be deemed a responsible bidder or offerer on any contract with an educational  agency  that  involves  the sharing  of student data or teacher or principal data, as applicable for purposes of the provisions of section one hundred three of  the  general municipal  law  or paragraph c of subdivision ten of section one hundred sixty-three of the state finance law, as applicable, for a fixed  period of up to five years; and/or  (4)  require  the  third  party  contractor to provide training at the contractor's  expense  on  the   federal   and   state   law   governing confidentiality of student data and/or teacher or principal data and the  provisions of this section to all its officers and employees with access to  such  data, prior to being permitted to receive subsequent access to such data from the educational agency from which the contractor obtained the  data  that was improperly disclosed or from any educational agency; and/or  (5) if it is determined that the unauthorized release of student  data or  teacher  or principal data on the part of the third party contractor or  assignee  was  inadvertent  and  done  without  intent,   knowledge, recklessness or gross negligence, the commissioner may determine that no penalty be issued upon the third party contractor.   7.   Implementation   and   enforcement.   a.   The  commissioner,  in consultation  with  the  chief   privacy   officer,   shall   promulgate regulations  establishing procedures to implement the provisions of this section, including but not limited to procedures for the  submission  of complaints from parents and/or persons in parental relation to students, classroom  teachers  or  building  principals,  or  other  staff  of  an educational agency, making allegations of improper disclosure of student data and/or teacher or principal data by a third party contractor or its officers, employees or assignees that may be subject  to  the  sanctions set  forth  in  subdivision  six  of  this  section.  Upon  receipt of a complaint  or  other  information  indicating  that  such  an   improper disclosure  by  a  third  party  contractor may have occurred, the chief privacy officer shall be authorized to investigate, visit,  examine  and inspect  the  third party contractor's facilities and records and obtain documentation from, or require the testimony of, any party  relating  to the  alleged improper disclosure of student data or teacher or principal data.   b. Except as provided under paragraph d of  subdivision  six  of  this section,  each  violation  of  any  provision of this section by a third party contractor or its assignee shall be punishable by a civil  penalty of  up  to  one  thousand  dollars; a second violation by the same third party contractor involving the same student data or teacher or principal data shall be punishable by a civil  penalty  of  up  to  five  thousand dollars;  any  subsequent  violation  by the same third party contractor involving the same student date or teacher or principal  data  shall  be punishable  by  a  civil  penalty  of  up  to ten thousand dollars. Each violation of this subdivision shall be considered a  separate  violation for  purposes  of civil penalties and the total penalty shall not exceed the maximum penalty under paragraph (a) of subdivision  six  of  section eight hundred ninety-nine-aa of the general business law.   c.  Nothing contained in this section shall be construed as creating a private right of action against the department or an educational agency.   d. Nothing in this section  shall  limit  the  administrative  use  of student data or teacher or principal data by a person acting exclusively in  the  person's capacity as an employee of an educational agency or of the state or any of its political subdivisions, any court or the federal government that is otherwise required by law.