Appendix A: 1995 U.S. Dept. of Education Letter to Copenhaver (Page 2 of 2)
requirement that an email must be 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 regulations require an educational agency to maintain a student's final grades, attendance records, and applicable health records. *6 The parties dispute whether emails containing information that personally identifies Student were "maintained" by TCOE. Student argues that TCOE "maintains" all email documents that are kept in a central email server or that exist in the individual email inboxes of TCOE staff. California DOE points out that Student asserts that TCOE maintains emails in a central email server and individual email inboxes "without substantiation." California DOE, Opp., 4. California DOE argues that Student "cannot state that the emails were in fact maintained. This is a factual issue that must be established without dispute in order for this court to consider it in making any determination regarding the application of the law." Id . In addition, California DOE submits that TCOE "maintained" only those emails that were printed out and placed in a Student's file in hard- copy format. Neither party attempts to define the term "maintain" through statute, regulation or case law. In Owasso Indep. Sch. Dist. No I-011 v. Falvo , 534 U.S. 426 (2002), the United States Supreme Court interpreted the definition of the word "maintain" under FERPA. In ruling that peer-graded assignments are not "maintained" as education records within the meaning of FERPA, the Court reasoned: The ordinary meaning of the word "maintain" is "to keep in existence or continuance; preserve; retain." Random House Dictionary of the English Language 1160 (2d ed. 1987). Even assuming the teacher's grade book is an education record — a point the parties contest and one we do not decide here — the score on a student-graded assignment is not "contained therein," § 1232g(b)(1), until the teacher records it. The teacher does not maintain the grades while students correct their peers' assignments or call out their own marks. Nor do the student graders maintain the grades within the meaning of § 1232g(a)(4)(a). The word "maintain" suggests FERPA records will be kept in a filing
BP 2003 – Student Records
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Desert Mountain Special Education Local Plan Area (DMSELPA) (rev. 04/14)
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