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IDEA Complaint Decision 06-056

On November 1, 2006, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Washington Island School District. This is the department’s decision regarding that complaint. The issue is whether the district properly responded to a parent’s requests in October and November 2005 to review and receive copies of her child’s education records.

In October and November 2005 the parent requested to review her child’s records and requested copies of tests administered to her child. In early November district staff notified the parent that the district no longer had test protocols because tests were discarded after administration. Several days later the parent received copies of other records; and although the district attempted to arrange an earlier meeting, the parent reviewed all her child’s records later in November.

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 was made. With the exception of the parent’s request to receive a copy of the test protocol, the district provided the parent access to, and copies of, her child’s records within 45 days of the request. Test protocols which contain personally identifiable information, such as the child's name, are pupil records. Test protocols were not maintained by the district and they no longer existed when the parent made the request. 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 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. While state law does not include a specific retention period for test protocols, retention may be required under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990. (See Mequon-Thiensville School District; Office for Civil Rights, Midwestern Division, Chicago; 05-03-1079; May 14, 2003.) Since this complaint was filed the district has changed its practice and now retains test protocols. The district properly responded to the parent’s request for her child’s records.

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

//signed CST 12/21/06
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy