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IDEA Complaint Decision 17-051

On August 4, 2017 (form dated August 1, 2017), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the Madison Metropolitan School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2016-17 school year, properly responded to the request of an adult student with a disability to inspect and review the student’s education records prior to a meeting of the student’s individualized education program (IEP) team.

A local educational agency (LEA) must permit adult students to inspect and review any education record that are collected, maintained, or used by the district. A school district must comply with a request for access to education records without unnecessary delay and before any IEP team meeting. In all cases, the school district must comply with a parent’s and student’s request within 45 days.

Education records are records that are directly related to the student and that are maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. The information may be recorded in any way, including, but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and e-mails. Education records do not include records that are 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. Grades on peer-graded papers, for example, are not considered education records because the grades are not maintained until the teacher has collected and recorded the grades. Similarly, e-mails are not necessarily considered education records because they are not “kept in one place with a single record of access.” See Owasso Indep. Sch. Dist. No. 1-011 v. Falvo, 534 U.S. 426, 434 (2002). E-mails may appear in multiple in-boxes of many individuals within the school and the school district. Like assignments that are passed between students, e-mails have a fleeting nature and “may be sent, received, read, and deleted within moments.” S.A. v. Tulare Cty. Office of Educ., 53 IDELR 143 (E.D. Cal. 2009).Only e-mails maintained as part of the student’s file are considered education records.

On September 19, 2016, the student sent an e-mail to the principal requesting access to the portion of his education records consisting of correspondence and notes from and after June 26, 2015, and records created by certain staff members. The student requested these records prior to an IEP team meeting that was scheduled for September 21, 2016. The e-mail was forward on that day to a district staff member who assists in responding to pupil records requests. Upon receipt, the staff member informed the student that the district received the request and that a search would be conducted to locate responsive records. The e‑mail states that there was not sufficient time to provide the records prior to the IEP team meeting as the request was less than two days prior to the meeting. The e-mail also indicated that personal notes would not be provided.

An IEP team meeting was held on September 21, 2016, to conduct a review and revision of the student’s IEP, and during the meeting, the student and parent requested another IEP team meeting to finish the development of the IEP and to allow for the requested education records to be provided. On September 27, 2016, the district e-mailed the requested education records to the student. The district provided the records that were printed and maintained within the physical folder located in the Student Services Department and maintained by the case manager. In its response, the district clarified that the education records included e-mails that were printed and maintained within physical files. The district further clarified that any e-mails that had not been printed and maintained in a physical folder were not included because they were not education records and did not come within the scope of the student’s request.

The IEP team met again on October 28 and November 2, 2016, to finish the review and revision of the student’s IEP. Although the district did not provide the requested records prior to the September 21, 2016, IEP team meeting, the department finds under the circumstances of this case, this was not unreasonable. Given the extent of the request and the fact that it was made less than two days prior to the IEP team meeting, the district properly responded by providing the records eight days after they were requested, which was prior to the October 28 IEP team meeting and well within the 45-day time period. In addition, the district was not required to provide e-mails that were not maintained.

This concludes our review of this complaint.


//signed CST 9/27/2017
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support