Student and South Hadley Public Schools – BSEA #03-1385



<br /> Student and South Hadley Public Schools – BSEA #03-1385<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: Student and South Hadley Public Schools

BSEA #03-1385

Ruling on Parent’s Motion for a Protective Order

This matter comes before the Hearing Officer on the Parent’s Motion for a Protective Order asking the Bureau to enjoin the school district from releasing student information to the non-custodial parent pursuant to M.G.L. ch. 71 section 34H. A hearing was held on the Motion on December 12, 2002, at which the Parent submitted documents labeled P-1 through P-8 and P-A through P-G, the School submitted documents marked 1.19 and both parties made oral arguments. These submissions establish the following:

1. The mother has legal and physical custody of the minor student pursuant to a California divorce decree. The mother enrolled the Student in the South Hadley Public School system in 1998.

2. On March 29, 2002, the father wrote to the School requesting all of the Student’s school records. Along with his request the father submitted Orders of the Massachusetts Probate Court, Hampshire Division, indicating that he had unsupervised visitation with the Student, (December, 28, 2001) and that he could obtain the Student’s school and medical records directly from the Student’s school or physician. (August 22, 2001) (S-1.19) The father also presented an Affidavit stating that the court orders he sent to the school were current and in effect, and that no protective order restricting his access to the Student’s records existed.
(S-1.19)

3. On April 2, 2002, the School notified the mother by regular and registered mail, of the father’s records request. (S-1.19)

4. The School notified the father that M.G. L. c. 71 section 34H required certified copies of court orders submitted to the School in support of a non-custodial parent’s record request. On May 6, 2002, the father sent a certified copy of the Probate Court’s August 22, 2001, Order granting him direct, unrestricted access to the Student’s school records. (S1.19)

5. The Student’s school records were sent to the father on May 14, 2002. There is no showing in this record that the mother objected to the disclosure at that time or submitted any superceding court order to the school regarding the father’s access to the Student or to the Student’s records. (S-1.19)

Discussion

The statute at issue here does not specify the appropriate forum for resolving disputes arising under its terms. While it is not clear the Bureau of Appeals would have initial jurisdiction of a dispute concerning the interpretation or application of M.G.L. c. 71 section 34H, in the circumstances presented here where the matter of student records release is embedded in multiple layers of substantive and procedural discord concerning the Student’s participation in special education, I believe it would be more efficient and helpful to the parties, and any interested court, for the Bureau to outline the obligations of the parties.

In general, the federal and state statues governing school records, and in particular special education records, refer to parents without regard to custodial status. See e.g. 34 CFR 300.20; 34 CFR 99.4; 603 CMR 28.02 (15); 603 CMR 28.03 (4); 603 CMR 23.00, 23.02. The mother here however, seeks to prevent the non-custodial father’s access to the Student’s records under M.G.L. c. 71 Section 34.H. This statute sets out specific conditions a non-custodial parent must meet before gaining access to the school records of his or her child. As a matter of standard statutory construction the general yields to the specific. See: Wright v. Wright , 10 Mass 1 Rptr. No. 16, 357 (Worcester Superior Court 1999) citing Pereira v. New England LNG Co. , 364 Mass 109 (1973). Therefore I find that M.G.L. c. 71 Section 34.H governs resolution of this matter. That statute provides that any parent who does not have physical custody of a child and wishes to receive student record information must make an annual written request to the principal of the Student’s school. The initial request must be accompanied by:

I. a certified copy of a Probate Court order indicating that the requesting parent

1. has not been denied shared legal custody based on a threat
to the child or the child’s custodial parent, and

2. has unsupervised visitation with the child;

OR

a certified copy of a Probate Court order allowing the noncustodial parent access to school records and indicating that

1. the Order is made after a review of records of the custody
proceedings and criminal history of the requesting parent if any,

2. provision of the student records will not pose a safety risk
the custodial parent or any child in the custodial parent’s custody, and

3. provision of the student records is in the best interest of the
the child.

and

II. an Affidavit from the noncustodial parent certifying:

1. That the Probate Court order submitted to the School
remains in effect and

2. that no protective order restricting access to the custodial
parent or to any child in the custodial parent’s custody is in effect.

M.G.L. c. 71 section 34H

The pertinent facts are not in dispute. They show substantial compliance with the requirements of M.G.L. c. 71 section 34.H. The non-custodial father initially requested student records from the school by submitting his request along with a court order indicating that his child visitation was not supervised, and a court order granting access to school records, and an Affidavit stating that the submitted court orders were current and no restrictions on access to the student’s records existed. (par. 2) The School alerted the noncustodial father that his submissions did not meet the statutory requirements because they were not certified. The father promptly submitted a certified copy of the Probate Court Order of record access. (par. 4)

The School also promptly notified the mother of the father’s record request and gave her the opportunity to submit additional information bearing on his right of access. There is no evidence that she did so. (par. 3,5) Only after taking all these steps did the School release the Student’s records to the father.

The mother argues that she could not properly object to the father’s records request because the School failed to send her copies of all the documents he sent to the School in support of the request. This argument has no merit. The School is not obligated under M.G.L. c. 71 Section 34.H to forward supporting documentation to the custodial parent. Further, with the exception of the Affidavit, supporting and opposing documentation would be equally available to both parents, as would access to the Probate Court for clarification of any issues regarding release of student records.

The mother also argues that the School erred in releasing the Student’s records because the father’s request did not meet each technical statutory precondition for release. She seeks a protective order barring the School from releasing any student information to the father until such times as each statutory element has been met. Indeed, the father’s submissions did not strictly comply with the M.G. L. c. 71 Section 34.H criteria. While his supporting documents established that he had unsupervised visitation with the Student, that he had court ordered right of access to the Student’s records, and that both of these conditions were current, there is no reference in any of the documents to a court assessment of the non-custodial parent’s risk to the safety of the Student or the custodial parent. It is that safety factor to which this otherwise neutral record release statute appears to be aimed.

Considering that the father’s submissions in support of his spring, 2002, records request appeared, facially, to be consistent with M.G.L. c. 71 Section 34.H, neither the School nor the mother had legal representation at that time, and there was no showing at the Motion Hearing of any harm as a result of the record release, I decline to find any substantial procedural error requiring relief in this forum. In the future, however, the parties must fulfill all the documentation requirements set out at M.G.L. c. 71 Section 34.H. To the extent that compliance with that statute depends on appropriate review in and language from the Probate Court, disagreements concerning the application of M.G.L. c. 71 Section 34.H should be resolved by that court.

Order

The Parent’s Motion for a Protective Order is GRANTED prospectively.

Lindsay Byrne, Hearing Officer


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