COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student. v.Ashland Public Schools BSEA # 04-2630
RULING ON THE STUDENT’S MOTION TO COMPEL ASHLAND PUBLIC SCHOOLS TO PRODUCE DOCUMENTS PURSUANT TO STUDENT’S REQUEST FOR PRODUCTION OF DOCUMENTS WITHOUT COST AND ASHLAND PUBLIC SCHOOLS RESPONSE TO PARENTS’ MOTION
On February 4, 2004, the Student filed a Motion to Compel Ashland Public Schools to Produce Documents Pursuant to Student’s Request for Production of Documents Without Cost. Student requested that Ashland Public Schools’ (hereinafter, Ashland) provide him with the documents requested without charging him 10 cents per copy for a total of $134.00 because he requested the documents under Article 5C and D which contains no provision for charging a fee for copying the documents. Student did not request documents under 603 CMR 23.07(2)(a), which permits charging a reasonable amount for copying. Payment of the fee would create undue financial hardship upon the adult Student who is 19 years of age, attends high school and receives approximately $500.00 per month from social security and his part-time job. Lastly, Ashland did not object to the request for production of documents and instead called 18 days after the Request had been sent to state that a charge was due for the 1200 pages copied.
On February 5, 2004, Ashland filed a response to the Student’s Motion contending that Massachusetts Student Record Regulation [603 CMR 23.07(2)(a)] allows a reasonable charge for photocopying records and that the amount sought, 10 cents per page, is reasonable and consistent with Question/Answer # 37 of the Department of Education’s Question and Answer Guide. The Department of Education indicated that in accordance with analogous public records laws, 20 cents per page was reasonable. Ashland had no knowledge that Student lived independently from his parents and could not afford the amount charged. If Student lived independently, Ashland requested documentation of such status. According to Ashland, the records have been available since February 2, 2004 and Ashland is only awaiting payment to release them.
Upon careful consideration of the arguments proffered by both sides I hereby DENY the Student’s Motion and GRANT Ashland’s. Student relies on the fact that he is requesting the documents under Rule 5.C.1 and 5.D.1.2 of the Hearing Rules For Special Education Appeals. These Rules grant access to information but are silent regarding the question of cost associated with copying; that is, the Rules neither allow nor bar it. MGL Chapter 71B §34E allows inspection of records to students over the age of 18 and parents, but is also silent regarding cost.
The authority to charge a reasonable fee for copying is found in both the Federal and the Massachusetts Regulations. 34 C.F.R. §300.566(a) provides that:
Each participating agency may charge a fee for copies of records that are made for parents under this part if the fee does not effectively prevent the parents from exercising their right to inspect and review those records.
Similar language is found in 603 CMR 23.07(2) which grants eligible students and parents access to the entire student record regardless of the physical location of the various parts. Furthermore, copies of the information contained in the student’s record must be made available upon request and the school is entitled to charge and receive a reasonable fee for the copies, not exceeding the cost of reproduction, unless doing so “ would effectively prevent the parents or eligible student form exercising their right, under federal law, to inspect and review the records.” 603 CMR 23.07(2)(a). While the term “effectively prevent” is not defined by the regulations, officials from OSEP and FERPA have interpreted that “a parent shall receive copies of the records when he or she lives too far from the school district to see the records in person.” Letter to Longest , 213 IDELR 173, 213 LRP 9078 (September 26, 1988) In an inquiry to OSEP regarding this issue, OSEP explained that where a parent had the opportunity to visit the school in a previous occasion, so as to personally inspect and review his child’s records, there was no basis to conclude that had the parent later requested a copy, one should have been provided free of charge. Id .
The regulations, case-law and federal policy all seem to conclude that a parent/student has a right to inspect, review , receive explanations and interpretations of records from the school district as well as receive a copy of the records for which school districts may charge a reasonable fee. This fee may be waived if the parent/student can show that s/he cannot afford the fee.
In the case at bar, the issue raised by Student is not his ability to inspect the record, which he may do free of charge, but rather Ashland’s demand that he pay a copying fee. The Rule upon which Student relies is not inconsistent with state and federal regulations, and the fee of 10 cents per page charged by Ashland is reasonable.3 At this time Student has failed to show that he cannot pay the fee or that paying the $134.00 fee for the copies effectively prevents him from exercising his right to inspect and review the records, which are and have been available for his review since at least February 2, 2004. I find that the cost assessed by Ashland is reasonable, consistent with the regulations and therefore, Student or his Parents are responsible to pay said amount for the copies.
So Ordered by the Hearing Officer,
_______________________________________
Rosa I. Figueroa
Dated: February 10, 2004
1
The Parents are encouraged to exchange information cooperatively and by agreement prior to the hearing. The parents are entitled to request copies of the student’s school records. Hearing Rules For Special Education Appeals Rule 5.C.
2
… Any party may request any other party to produce or make available for inspection or copying any document or tangible things, not privileged, not supplied previously, and which are in the possession, custody or control of the party upon whom the request is made. Hearing Rules For Special Education Appeals Rule 5.D.1.
3
See Board of Education of the Springville-Griffith Institute Central School District , 37 IDLER 54, 102 LRP 13060 (May 21, 2002), finding that a hearing officer had jurisdiction to impose a 10 cent per page fee and pointing out that if the district’s actual costs were higher, the charge could increase. See also, Letter to Longest , 213 IDELR 173, 213 LRP 9078 (September 26, 1988)