We frequently field questions from school psychologists, occupational therapists, speech pathologists, and others about how to handle their working notes made in the in the process of evaluating students for special education services. Are education professionals obligated to preserve these notes? Are parents entitled to review the notes? Do parents have to be notified before these notes are destroyed? These questions are part of a larger discussion about student record obligations under the Family Educational Rights and Privacy Act (FERPA), the Individuals with Disabilities Education Act (IDEA) and, to a lesser extent, the record retention schedules set by Nebraska’s Secretary of State pursuant to the Public Records Act.
An evaluator’s notes are often essential to the evaluation process, but extremely context specific. Taken out of context, or even simply viewed by someone other than the creator, these notes can lead to an inaccurate or incomplete portrayal of the evaluator’s opinions. For this reason, both the evaluator who created the notes and the school district often prefer that they stay confidential and undisclosed. Under FERPA and the IDEA, schools may withhold these notes from disclosure in two circumstances: if the notes are not maintained, or if the notes are maintained pursuant to the sole possession exception.
If the notes are not maintained.
FERPA gives parents the right to access, amend, and control the disclosure of their child’s education records. Under FERPA, “the term ‘education records’ is defined as those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution.” Letter to Anonymous, 115 LRP 18603 (2015) (emphasis added). Evaluator’s notes contain information directly related to a student, and thus meet the first half of the definition. The determining factor then becomes whether the district has “maintained” these notes. If the school maintains the notes, they are educational records that parents may access upon request. If the school does not maintain the notes, they are not educational records and there is no duty to allow access to them.
The U.S. Supreme Court has said that in a FERPA context, the word maintain means “to keep in existence or continuance; preserve; retain.” Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002). Therefore, if a school does not intend to keep, preserve, or retain information, the information is not an education record.
Schools (not individual employees) get to decide whether they will maintain evaluator’s notes. “[A] school is not generally required by FERPA to maintain particular education records or education records that contain specific information. Rather, a school is required to provide certain privacy protections for those education records that the school selects to maintain.” Letter to Anonymous, 115 LRP 18603 (2015) (emphasis added).
Under FERPA, so long as it is permitted by other record retention requirements a school may also destroy records it has previously maintained unless there is an outstanding request by a parent to inspect and review the records of their student. If the records relate to special education matters, as evaluator’s notes often do, the school must inform parents “when personally identifiable information collected, maintained, or used is no longer needed to provide educational services to the student.” Washoe County School District, 115 LRP 26190 (2015); 34 C.F.R. 300.624 (2017).
Sole Possession Exception.
As noted above, information is not within the scope of FERPA obligations if it is not maintained. There are also limited instances in which a school could maintain evaluator’s notes and still withhold them from disclosure.
FERPA uses exceptions to exclude some specific school records from the definition of “education records” which may be accessed upon request. Under the “sole possession exception” a school does not have a duty to disclose “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.” 34 C.F.R. 99.3 (2017).
The FPCO, which enforces FERPA, has narrowly interpreted the sole possession exception. In Letter to Baker, Complaint No. 1251 (2005) the FPCO stated:
In order to qualify for [the sole possession] exception, the notes or other records must be kept in the sole possession of the maker (except a temporary substitute) and be only used as a personal memory aid. That is, the exception for “sole possession records” is intended to protect “personal notes” . . . It is not intended to exclude . . . detailed or comprehensive notes that record specific clinical, educational or other services provided to a student, or that record the school official’s direct observations or evaluations of the student behavior, including the student’s success in attaining specified objectives.
In some instances, evaluator’s notes may be detailed, comprehensive notes that record specific clinical, educational, or other services provided to a student. However, this exception allows a school to maintain evaluator’s notes that meet the requirements without an obligation to provide access to them.
State Public Record Retention Schedules.
Under Nebraska’s Public Records laws, public school employees and contractors must retain all records related to the operation of the school unless the retention schedules do not require their retention or have given permission for the records to be destroyed. KSB attorneys are working with the Secretary of State’s office and a working group put together by NCSA to revise Schedule 10, the record retention schedule which applies to public schools. Until Schedule 10 is updated to be more consistent with these other state and federal law obligations, we believe the authority to destroy evaluator’s notes can be found in Schedule 24, which was updated in 2015. Under item number 24-89 of Schedule 24, school staff are permitted to destroy “working papers” either when the final report or study is completed or when they are no longer of reference value. In our conversations with the staff from the Secretary of State’s office, they have indicated that they would rely on this item number to permit destruction of notes like those used by evaluators related to special education services. As long as the evaluator’s notes can be considered “raw data, research materials and drafts used when creating reports, studies, etc.” they can likely be destroyed when they are no longer useful to the staff members who are working with them.
Check Your Record Retention Policy.
As we noted above, the school district/ESU and not individual employees gets to decide what records the entity will “maintain” pursuant to FERPA. Once a record is “maintained” it may also fall under the Secretary of State’s retention schedules. If your school district or ESU uses the KSB policy service, your board was given three choices to select from in deciding what the entity will maintain. The third choice provided:
[OPTION 3] For purposes of the district’s compliance with state and federal law, the district “maintains” as “student records” all records, files, and documents which are located in any format and within any storage unit of the district, whether in hard copy, digital, or otherwise.
If your board opted to adopt this option, then evaluator’s notes will be student records pursuant to FERPA and state law. In that instance, you would have to rely on the sole possession notes exception explained above if you wish to withhold the notes from a parent who requests them.
Under FERPA, a school district is required to provide parents access to education records. If a school district chooses not to maintain evaluator’s notes, or if the notes meet the narrow sole possession exception, there is no obligation for disclosure. Before destroying personally identifiable information that relates to special education students, a school must notify the parents. If you have any questions about your district’s obligations under FERPA or the IDEA, please contact your attorney or call Karen, Steve, Bobby, or Tim.