Desert Mountain Charter SELPA Policies and Procedures

Appendix B: S.A. v. Tulare County Office of Education Emails are Not Educational Records if they are “Not Printed and Placed” in a Student’s File (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution. 20 U.S.C. § 1232g(a)(4)(A); 34C.F.R. § 300.613(b). The term "education record" does not include, inter alia, "records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute." 20 U.S.C. 1232g(a)(4)(B)(i); see also, 34 C.F.R. § 99.3 (education records do not include those 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 as a temporary substitute for the maker of the record."). The plain language of the statute and regulation that define "education records" is consistent with California DOE's interpretation that only those emails that both are maintained by the educational institution and personally identify Student are educational records. The statute, 20 U.S.C. § 1232g(a)(4)(A), and the regulation, 34 C.F.R. § 99.3, include the conjunction "and" between the two requirements. As conjunctive phrases, the statute and regulation require an email to satisfy both prongs to be an education record. Thus, an email is an education record only if it both contains information related to the student and is maintained by the educational agency. Conversely, an email that is not maintained by the educational agency is not an education record. Student asserts that "e-mails, whether printed and in hard copy or in electronic format, which specifically reference him are `educational [sic] records' and must be provided pursuant to the IDEA's regulations." Student's Memo., 5. Student's position erroneously ignores the statutory requirement that an email must also be maintained. Thus, emails, whether in hard copy or in electronic format, may be education records so long as the educational institution maintains them. In his interpretation of the statute, and in this motion, Student seeks to compel TCOE to maintain all emails that identify him. This position is not supported by the plain language of the statute or regulations and places the proverbial cart before the horse. The definition of an education record does not direct an educational agency to maintain a record that identifies Student. Contrary to Student's assertion, and as discussed above, only a record that, inter alia , is maintained by the educational institution meets the definition of an education record. Student points to no provision that requires an educational institution to maintain an email — or any other record — based solely on the fact that it contains personally identifiable information about a student.2 Accordingly, Student's unpersuasive interpretation of the statute is untenable. As set forth above, an email is an education record only if it personally identifies Student and is maintained by the educational institution. FN2. Educational institutions and agencies are required to maintain certain records. For example, FERPA and the IDEA require educational institutions to maintain a record of each request for access to and each disclosure of personally identifiable information from the education records of each student. 34 C.F.R. § 99.32(a)(1); 34 C.F.R. § 300.614. Other

BP 2001 – Confidentiality and Student Records

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Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/16)

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