COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Mattapoisett Public Schools
BSEA # 06-6153
RULING ON MOTION FOR PROTECTIVE ORDER
A. Introduction
On January 18, 2007, Mattapoisett Public Schools (Mattapoisett) filed a Motion for Protective Order in the above-captioned case. On January 25, 2007, Parents filed their opposition. In order to apprise the parties in a timely manner, I issued an order on January 31, 2007 denying the Motion . This Ruling sets forth the reasoning underlying that order and takes the place of the previous order.
Mattapoisett has sought protection from responding to Parents’ document request with respect to IEPs and other documents pertaining to other students with whom Student was or would be grouped when receiving educational services. Parents ask that prior to receiving the IEPs and other documents, they be redacted of any personally identifiable information.
The principal issues in dispute are (1) whether the requested documents are relevant and discoverable, and (2) whether the Family Educational Rights and Privacy Act and the Massachusetts student records regulations preclude discovery.
B. Discoverability of Requested Information
BSEA Hearing Rule VIB(1) provides that a party may obtain a copy of any documents “not privileged, not supplied previously, and which are in the possession, custody, or control of the party upon whom the request is made.”1
Although not directly applicable, the Massachusetts Rules of Civil Procedure and the Federal Rules of Civil Procedure may provide additional guidance. Massachusetts Rule 26(b)(1) provides, in part:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Federal Rule 26(b)(1) is to the same effect.
It is not disputed that the requested documents are not privileged, have not been previously supplied, and are within the possession and control of Mattapoisett, and therefore fall within the above-quoted BSEA standards for discoverability.
However, Mattapoisett has taken the position that the documents are not discoverable because they are irrelevant, would be inadmissible at hearing, and would not likely lead to the discovery of admissible evidence. In support of this position, Mattapoisett argues that any decision by the Hearing Officer regarding the appropriateness of Mattapoisett’s proposed programs would necessarily be limited to a review of Student’s “unique and individualized program and the services/placement proposed therein” by Mattapoisett.
I do not find this argument to be persuasive. The IEPs and other documents pertaining to other students provide a potentially invaluable source of information relevant to Parents’ claims that Mattapoisett’s proposed educational placements for Student are or were inadequate as a result of the inappropriate grouping of students within whom Student was or would be placed. For example, Parents take the position that in order to receive appropriate reading services, Student must be grouped with other students who have similar reading needs. I find that the requested documents are material and necessary to the prosecution of Parents’ claims. Also, it is undisputed that the documents sought by Parents are uniquely within the knowledge and possession of Mattapoisett .
For these reasons, I find that the requested documents may be relevant to the pending dispute and are discoverable unless, as a result of another statute or regulation, Mattapoisett is precluded from complying with Parents’ discovery request.2
C. Family Educational Rights and Privacy Act
Mattapoisett takes the position that the Family Educational Rights and Privacy Act (FERPA) and regulations thereunder, preclude Mattapoisett from providing copies of the redacted IEPs and related documents to Parents .3 It is not disputed that Mattapoisett is an educational agency subject to FERPA. I also note that the Individuals with Disabilities Education Act (IDEA) makes FERPA applicable to IDEA proceedings.4 I therefore consider the relevance of FERPA to the present dispute.
Under FERPA, Mattapoisett may not have a policy or practice of disclosing education records, or non-directory, personally identifiable information from education records, without the written consent of the parent, except as provided by law.5 “Education records” are defined as records that are directly related to a student, and maintained by an educational agency or institution or by a party acting for the agency or institution.6
Under the FERPA regulations, “disclosure” means “to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written, or electronic means.”7 The regulations define “personally identifiable information” to include the following:
1. The student’s name;
2. The name of the student’s parent or other family member;
3. The address of the student or student’s family;
4. A personal identifier, such as the student’s social security number or student number;
5. A list of personal characteristics that would make the student’s identity easily traceable; or
6. Other information that would make the student’s identity easily traceable.8
FERPA further expressly precludes disclosure of personally identifiable information belonging to other students, typically in the context of a document that includes references to multiple students:
If any material or document in the education record of a student includes information on more than one student, the parents of one such student shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information contained in such part of such material.9
The Director of the United States Department of Education Family Policy Compliance Office considered the above-referenced statutory and regulatory language when faced with the question of whether a school district, under FERPA, may release information contained in education records related to one student to the parents of another student. The question arose in the context of an IDEA due process hearing in which the Hearing Officer ordered that parents be allowed access to discipline records that included written allegations made by other students charging the Student with serious or criminal behavior. The school district provided a copy of the requested records after it had redacted the names and other personally identifiable information regarding the other students. The matter was referred to the DOE Family Policy Compliance Office for clarification of whether the school district’s actions were appropriate.
Although this context differs from the present dispute in the form of the particular records sought, the following response from the Family Policy Compliance Office addresses the essential question in the present dispute:
Thus, absent the consent of the parents of the other students whose names appear in a student’s education records, an educational agency or institution does not have authority to release such personally identifiable information under FERPA. A school district should redact the names of, or information easily traceable to, any other students mentioned in a student’s education records before providing a parent access to the student’s education records. In cases where joint records cannot be easily redacted or the information segregated out, the school district may satisfy a request for access by informing the parent about the contents of the record.10
A number of courts have reached essentially the same conclusion – that is, that information otherwise protected by FERPA may be disclosed without consent if personally identifiable information is redacted from the record. For example, the Sixth Circuit Court of Appeals has explained: “N othing in the FERPA would prevent the Universities from releasing properly redacted records.”11
Similarly, in a careful analysis of the FERPA language, history, and purpose of protecting student privacy, the Wisconsin Supreme Court stated: “we conclude that non-consensual access to information in education records is not wholly forbidden. Rather, access is limited only to disclosure of information that is not personally identifiable.”12 Other courts have noted that FERPA’s prohibition of a “policy or practice” of non-consensual disclosure does not necessarily preclude a court’s ordering release of student records on a case-by-case basis.13
Applying these principles to the present dispute, I conclude that if the IEPs and other documents sought by Parents are properly redacted of all “personally identifiable information” (as that term is defined within the FERPA regulations discussed above), FERPA does not prohibit Mattapoisett from releasing the requested documents pursuant to a discovery request.
D. Massachusetts Student Records Regulations
Mattapoisett also relies on the Massachusetts student record regulations. These regulations preclude non-consensual third party access to student records, with exceptions not relevant to the present dispute.14 Student records are defined to include all student information (maintained by a Massachusetts public school) that is “organized on the basis of the student’s name or in a way that such student may be individually identified.”15
Although the Massachusetts regulations are written using different words than found within FERPA and its regulations, the underlying scope and purposes are the same – that is, to allow parents (and eligible students) access to their son’s or daughter’s school records and to protect against unwarranted disclosure of personally identifiable information to third parties. I note that the preamble to the Massachusetts student records regulations provides that the state regulations are “to be construed harmoniously with [federal statutes regarding access to student records].” I have not found any Massachusetts case law relevant to the interpretation of these regulations.
For these reasons, I construe the Massachusetts student records regulations to provide the same protections as FERPA regarding the discovery of IEPs and other student documents. Accordingly, I do not find that the regulations provide a bar to Parents’ discovery request in the present dispute.
E. Disclosure Conditions
Mattapoisett has appropriately raised the concern that documents sought by Parents, even if properly redacted, may possibly be identifiable to a particular student. If this were to occur, it would seem most likely to happen where the person who sees the redacted record has additional knowledge about the student who is the subject of the redacted document.
This concern does not preclude disclosure to Parents’ attorneys pursuant to their discovery request. However, in order to minimize a possible breach of privacy, Parents’ attorneys shall receive the redacted documents and maintain their confidentiality, and may further disclose the documents only as provided in the following disclosure conditions:
· Parents’ attorneys may disclose the redacted documents to any of their experts who are assisting Parents in determining appropriate grouping of students and/or who may testify at Hearing regarding appropriate grouping. At the close of the dispute before the BSEA, Parents’ attorneys shall ensure that the experts return the documents to Parents’ attorneys.16
· Parents’ attorneys may submit the redacted documents to the Hearing Officer and opposing party as proposed exhibits in this dispute.
· Parents’ attorneys shall take appropriate steps to ensure that there is no further disclosure of these documents, except as may be provided by further Order of the Hearing Officer.
Order
For these reasons, the School District’s Motion for Protective Order is DENIED , subject to the disclosure conditions described immediately above in part E of this Ruling.
By the Hearing Officer,
_________________
William Crane
Date: February 8, 200717
1
Executive Office of Administration and Finance hearing rules, which apply to BSEA proceedings, include a similar provision. 801 CMR 1.01(8)(b).
2
Mattapoisett has also asserted that Parents’ document request is overly broad and unduly burdensome. The document request is focused specifically on Parents’ need for additional information about other students and therefore is not overly broad. Mattapoisett has provided no factual basis from which I could find that the request is unduly burdensome.
3
20 USC 1232g.
4
20 USC 1417(c).
5
20 USC 1232g(b).
6
20 USC 1232g(a)(4)(A); 34 CFR 99.3 (“Education records”).
7
34 CFR 99.3 (“Disclosure”) (emphasis added).
8
34 CFR 99.3 (“Personally identifiable information”).
9
20 USC 1232g(a)(1)(A). See also 34 CFR 99.12(a).
10
U.S. Department of Education, Family Policy Compliance Office’s Letter of Technical Assistance to School District re: Disclosure of education records containing information on multiple students (10/31/03) (emphasis supplied), found at http://www.ed.gov/policy/gen/guid/fpco/ferpa/library/1031.html
11
U.S. v. Miami University , 294 F.3d 797 , 824 (6 th Cir. 2002).
12
Osborn v. Board of Regents of University of Wisconsin System , 254 Wis.2d 266, 290, 647 N.W.2d 158 (2002). See also Unincorporated Operating Div. of Indiana Newspapers, Inc. v. Trustees, 787 N.E.2d 893 ( Ind.App.,2003) (“ if these notes were properly redacted to eliminate any identifiable student information, they would not be protected by FERPA”); State ex rel. Miami Student v. Miami Univ., 79 Ohio St.3d 168, 680 N.E.2d 956 (1997) (university students’ redacted disciplinary records were not education records), cert. denied 522 U.S. 1022, 118 S.Ct. 616, 139 L.Ed.2d 502. But see Rim of the World Unified School Dist. v. Superior Court , 104 Cal.App.4th 1393, 129 Cal.Rptr.2d 11 ( Cal.App. 2002) ( even if the student’s name and other identifying information were redacted, records are protected under FERPA).
13
Ellis v. Cleveland Municipal School Dist. , 309 F.Supp.2d 1019 ( N.D.Ohio 2004) ( disclosure of information protected by FERPA may occur pursuant to a court order on a case-by-case basis); Com. v. Buccella , 434 Mass. 473, 751 N.E.2d 373 (2001)( FERPA not violated unless a school has a “policy or practice of permitting the release of education records” without parental consent; single instance of releasing a record without parental consent does not violate FERPA).
14
603 CMR 23.07(4).
15
603 CMR 23.02 (the student record).
16
This sentence of the disclosure conditions differs from the January 31, 2007 order.
17
I note, with appreciation, the legal research assistance provided by BSEA legal intern Joseph Presti.