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IDEA Complaint Decision 04-008

On March 1 and 22, 2004, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Neenah Joint School District. This is the department's decision regarding that complaint. The issue is whether the district properly responded to the parents' request in February 2004 for education records regarding their child maintained by two district employees and improperly destroyed three truancy reports dated February and May 2003 regarding their child.

During February 2004, the parents requested copies of portions of their child's education records. Among the documents requested were test protocols administered by two school staff members. Several days later district administration responded, indicating that the requested records no longer were available. One staff member destroyed the records after the student moved to a different school in the district at the next educational level. It was her practice to destroy student records she maintained when her students moved on. The other staff considered the requested records to be personal notes, which he destroyed after leaving the district. Test protocols that contain personally identifiable information, such as the child's name, are pupil records. A district is required to provide parents, on request, access to their child's education records maintained by the district without unnecessary delay and in no case more than 45 days after the request has been made. In this case, the test protocols were not maintained by the district and they no longer existed when the parent made the request.

The parents amended their original complaint, indicating that the district did not include truancy reports among the files the district provided the parents in response to their request for behavioral records. The parents have copies of these documents which had been mailed to them at the time the district considered their child to be truant. The district removed the reports from the student's records after determining the student was not truant for the three instances reported. The district no longer maintains these documents. Because the documents inaccurately recorded the student as truant, the district determined it no longer should maintain them. The truancy reports no longer existed when the parent made the request. The parents have copies of these records previously provided to them by the district. Districts are required by state law to maintain progress records for five years after a student no longer is enrolled in the district. Test protocols and truancy reports are behavioral records under state law and are not subject to a specific retention period. The district was not required by state law to retain these records.

This concludes our review of this complaint, which we are closing.

//signed CST 4/19/04
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy