001-10 Education Records
The definition of "education record" specifies that "in addition to written records, this also includes electronic exchanges between school personnel and parent(s) regarding matters associated with the child’s educational program (e.g., scheduling of meetings or notices)."
- Since the definition also references education record in accordance with the Family Educational Rights and Privacy Act (FERPA), does this mean that all correspondence, including e-mails, would be considered an education record?
- How does this affect record retention requirements?
Federal regulations implementing IDEA, at 34 CFR §300.611(b), reference the definition of education included in FERPA. The Virginia Regulations reiterate language from the federal regulations and are also consistent with the regulations implementing FERPA (34 CFR §99). Pertinent sections in the Virginia Regulations related to the term, "education record" are as follows:
8VAC20-81-10. Definitions
"Education record" means those records that are directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution. The term also has the same meaning as "scholastic record." In addition to written records, this also includes electronic exchanges between school personnel and parent(s) regarding matters associated with the child's educational program (e.g., scheduling of meetings or notices). This term also includes the type of records covered under the definition of "education record" in the regulations implementing the Family Education Rights and Privacy Act. (20 USC §1232g(a)(3); §22.1-289 of the Code of Virginia; 34 CFR §300.611(b)).
8VAC20-81-170. Procedural safeguards.
A. Opportunity to examine records; parent participation. (34 CFR §§300.322(e), 300.500 and 300.501; 8 VAC 20-81-150)
- Procedural safeguards. Each local educational agency shall establish, maintain, and implement procedural safeguards as follows:
a. The parent(s) of a child with a disability shall be afforded an opportunity to:
(1) Inspect and review all education records with respect to (i) the identification, evaluation, and educational placement of the child; and (ii) the provision of a free appropriate public education to the child.
8VAC20-81-170. Procedural safeguards.
G. Confidentiality of information.
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Access rights. (34 CFR §300.613)
a. The local educational agency shall permit the parent(s) to inspect and review any education records relating to their children. The local educational agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP or any hearing in accordance with 8 VAC 20-81-160 and 8 VAC 20-81-210, or resolution session in accordance with 8 VAC 20-81-210, and in no case more than 45 calendar days after the request has been made.
8VAC20-81-170. Procedural safeguards.
G. Confidentiality of information.
4. List of types and locations of information. Each local educational agency shall provide a parent(s) on request a list of the types and locations of education records collected, maintained, or used by the local educational agency. (34 CFR §300.616)
Except for specific exceptions listed in FERPA, education records are those records that are directly related to the student and maintained by an education agency or institution or a party acting for the agency or institution (34 CFR §99.3). Education records may be in any mode that includes (but is not limited to) handwriting, print, computer media, videotape, audiotape, film, microfilm, or microfiche. Further, the designation of a document as an education record depends on who maintains it, not who originates it. Thus, documents that are maintained, but not necessarily created, by the school division or a division employee or agent qualify as education records.
It is up to each locality to determine which electronic data and communication (including communication between and among school personnel), if any, constitute an education record and how the school division will maintain electronic education records in ways that will allow parent(s) access to those records if they request a copy or want to inspect or review the student’s entire record. In addition, a division must be mindful that certain electronic data and communication must be retained to enable it to demonstrate compliance with various state and federal special education regulations regarding whether in the context of a state complaint, due process proceeding, or federal monitoring and data collection. Recall that the definition of electronic record includes matters associated with the child’s educational program; e.g., scheduling of meetings or notices.
Local retention schedules must comply with the requirements of the Library of Virginia. This would include electronic records as well as other education records.
Practice Tip: Since electronic data and communication systems are developed and overseen by Information Technology (IT) specialists, it is recommended that they be included in the decision on how such information will be maintained. As many localities move toward electronic data bases with the eligibility process and IEPs maintained on-line, localities may need to specify in the child’s main education file that a separate file is available electronically and is available to review on request. If notice of meetings and other official communication occur between school personnel and parent(s) electronically, the locality may need to be able to search files related to a specific student or they may wish to print all e-mails to maintain in the child’s record. This would include determining whether communication between and among school personnel are education records.
It is important to note that requests based on the Freedom of Information Act (FOIA) may be used at any time to request e-mails with a child’s name. Even though there may be local directives that would prohibit such electronic communications, such directions would not negate the school division’s response to a FOIA request which may include a search of e-mails. These communications may also be subject to subpoena in legal actions, including due process hearings. It is recommended that each locality bring together those who have knowledge of its IT system and those who can identify which information may be requested to develop a system that efficiently and effectively can be used to produce the information requested within the time period allowed by FOIA. There may be a number of alternative solutions to this requirement based on each locality’s system.