Appendix A: 1995 U.S. Dept. of Education Letter to Copenhaver (Page 2 of 2)
student and are "maintained" by the educational agency are "education records" pursuant to the IDEA. California DOE contends that TCOE only "maintains" those emails that are printed out and placed in Student's permanent file and that TCOE maintains no emails in electronic format. Accordingly, California DOE concludes that TCOE properly produced Student's education records, because TCOE provided all emails that personally identified Student and were maintained in Student's file. In addition, California DOE contends that TCOE properly provided the email education records in the format they were maintained — in this instance, in hard-copy format — and is not required to maintain electronic documents in their native file format. Student replies that all emails are "maintained" in TCOE's electronic mail system, and are maintained in the inboxes of the recipients. Student contends that all emails can be located on TCOE's electronic storage system through the use of information technology, even those emails that were previously deleted. Based on this premise, Student contends that TCOE must produce all emails that personally identify Student. In addition, Student asserts that because emails are "maintained" on TCOE computers, TCOE must produce emails in the native file format for inspection. The Court begins its analysis with the statute. The IDEA specifies that an "education record" is the type of record defined in the regulations implementing the Family Educational Rights and Privacy Act ("FERPA"). 34 C.F.R. 300.611(b). In turn, FERPA defines "education records" as those:
*5 records, files, documents, and other materials which —
(i) contain information directly related to a student; and
(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
BP 2003 – Student Records
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Desert Mountain Special Education Local Plan Area (DMSELPA) (rev. 04/14)
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