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Last Updated: 11/20/2017
 

Ask the Attorney with John Brower   [Back to Ask the Attorney]

Question: Last year, when I saw my child’s record folder it was about 1˝" thick. This year I requested copies of all his records, and at best the file is less than ˝” thick. I suspect a lot of records have been destroyed or moved. I have also requested that I be given copies of all of my child’s records and they wish to charge me a fee for the copies. What can I do?

 

Answer:  When a parent is dealing with their child’s school records, they are a number of interrelated issues that arise.  First, what is an “educational record”?  Next, what “educational records” must be maintained by the school and for how long?  Then, what access does a parent have to their child’s educational records?   Can a parent a parent be charged for copies of the child’s educational records?  What if they dispute the accuracy of a specific record?  If records are destroyed or not made accessible, where are complaints filed?

 

The following information, with the actual sections of the applicable statute or regulations in italics may help improve your understanding of this area of the law:

 

1.                  Definition of Educational Records – The Family Educational Rights Privacy Act (FERPA), 20 U.S.C. § 1232g et seq., with the regulations interpreting the statute at 34 C.F.R. § 99 et seq., defines an educational record broadly.  First FERPA defines the term “record” as: . . . any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

 

Next, FERPA defines an “educational record” as: . . . those records, files, documents, and other materials, which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.

 

At the same time, a record is not an “educational record” and subject to parental access if the record [is] . . . kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.   

 

A record is directly related to the student if it contains “personally identifiable” information.  Personally identifiable information includes, but is not limited to:  (a) The student's name;  (b) The name of the student's parent or other family member;  (c) The address of the student or student's family;  (d) A personal identifier, such as the student's social security number or student number;  (e) A list of personal characteristics that would make the student's identity easily traceable;  or (f) Other information that would make the student's identity easily traceable.

 

2.                  Maintenance of Records – What educational records need to be maintained and not destroyed is governed by both state and federal law.  The state laws vary from state to state. They are frequently titled “record retention” and can be found via searching your state’s statutes, regulations or school code using www.findlaw.com or similar legal search engine.  The state law may contain their own unique manner of addressing disputes regarding records.

 

Normally, at some time most of a student’s educational records are destroyed.  Generally, it has been my experience that schools keep on file as a permanent record the student's name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed.  However, for student’s receiving services under IDEA, their educational records generally need to be maintained as long as services are being provided.   Even then, pursuant to 34 CFR §300.573, the public agency must inform the parents when personally identifiable information collected, maintained, or used under this part is no longer needed to provide educational services to the child so the parent can decide if they want copies of the records before they are destroyed.

 

3.                  Parental Access – FERPA provide that Parents have the right to inspect and review the education records of their children. . . . Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made.  Note: IDEA eligible student – IDEA has its own record requirements that adopt much of the FERPA language.  However, the right to access records is immediate when an IEP Team meeting or administrative hearing is involved.

 

4.                  Copies of Records – The federal regulations interpreting FERPA state:  If circumstances effectively prevent the parent or eligible student from exercising the right to inspect and review the student's education records, the educational agency or institution, or SEA or its component, shall l-- (1) Provide the parent or eligible student with a copy of the records requested. 

 

5.                  Disputes – Disputes as to missing or inaccurate records can be addressed in a number of ways.  First, pursuant to FERPA’s regulations at 34 CFR § 99.20: (a) if a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student's rights of privacy, he or she may ask the educational agency or institution to amend the record.  (b) The educational agency or institution shall decide whether to amend the record as requested within a reasonable time after the agency or institution receives the request.  (c) If the educational agency or institution decides not to amend the record as requested, it shall inform the parent or eligible student of its decision and of his or her right to a hearing under 34 CFR §99.21.

 

A parent or eligible student may file a written complaint with the Office regarding an alleged violation under the Act and this part. The Office's address is: Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, S.W., Washington, DC 20202-4605.

 
Additional information on the law and filing complaints is available on the FPCO website at http://www.ed.gov/policy/gen/guid/fpco/index.html.

  

John F. Brower, JD

Education Law Center, PLLC (information@michedlawcenter.com)

Law Office of John F. Brower, Brighton, MI

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