California OAH special education order · August 10, 2015

Order Granting Motion to Quash

OAH Case No. 2015070264 · ALJ B. Andrea Miles

OAH quashed Redwood City's subpoena to Charles Armstrong School for Student's records because special education law does not allow prehearing discovery, including subpoenas for early document production.

Granted Subpoenas, motions to compel, and records

Summary

Student moved to quash a subpoena duces tecum that Redwood City served on Charles Armstrong School. The subpoena sought all records about Student, to be sent to the district's attorney on August 7, 2015, well before the October hearing. Redwood City opposed. OAH granted the motion because the IDEA and California law give rights to present evidence and compel witnesses only at the hearing itself, not before it, and no authority lets a district compel prehearing production of records held by a third party.

Why it matters

Districts cannot use subpoenas to get a student's records from private schools or other third parties before the hearing. Parents can move to quash such subpoenas when they demand production ahead of the hearing date.

Key authority cited

20 U.S.C. § 1415(h)
Ed. Code, § 56505, subd. (e)
Cal. Code Regs., tit. 5, § 3082, subd. (c)(2)
Ed. Code, § 56504
20 U.S.C. § 1232g(a)(4)
Code Civ. Proc., § 1987.1

Topics

subpoena duces tecum motion to quash prehearing discovery third-party records private school records

Full text of the order

Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2015070264 v. ORDER GRANTING MOTION TO

QUASH

REDWOOD CITY SCHOOL DISTRICT

AND BELMONT-REDWOOD SHORES

SCHOOL DISTRICT.

On June 15, 2015, Student filed a Request for Due Process Hearing (complaint) with the Office of Administrative Hearings, naming Redwood City School District and Belmont Redwood Shores School District as respondents. On July 15, 2015, OAH continued the start date of the due process hearing from August 11, 2015 to October 6, 2015.

On July 31, 2015, Student filed a motion to quash Redwood City’s subpoena duces tecum which was served on Charles Armstrong School. On August 6, 2015, Redwood City filed an opposition to Student’s motion.

APPLICABLE LAW AND DISCUSSION

In general, there is no right to prehearing discovery in due process proceedings under the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq. (IDEA)). Rather, the IDEA provides parties with the right to present evidence and compel the attendance of witnesses at “a hearing conducted pursuant to subsection (f) or (k)” of section 1415 of title 20 of the United States Code. (20 U.S.C. § 1415(h).) California provides a similar right to present evidence and compel the attendance of witnesses in due process proceedings, but does not confer the right to prehearing discovery. (Ed. Code, § 56505, subd. (e).)

In special education proceedings in California, “[t]he hearing officer shall have the right to issue Subpoenas (order to appear and give testimony) and Subpoenas Duces Tecum (order to produce document(s) or paper(s) upon a showing of reasonable necessity by a party).” (Cal. Code of Regs., tit. 5, § 3082, subd. (c)(2).) While subpoenas duces tecum are authorized in special education hearings, their use must be consistent with the legislative and regulatory framework of these proceedings, which accord prehearing access to two types of documents: (i) parents have the right to request and receive the pupil’s educational records within five business days at any time (Ed. Code, § 56504), and (ii) the parties are entitled to receive copies of all the documents the educational agency intends to use at hearing, not less than five business days prior to the hearing. (Ed. Code, § 56505, subd. (e)(7).)

Education records under the IDEA are defined by the federal Family Educational Rights and Privacy Act (FERPA) to include “records, files, documents, and other materials”

containing information directly related to a student, other than directory information, which “are maintained by an educational agency or institution or by a person acting for such agency or institution.” (20 U.S.C. § 1232g(a)(4)(A); Ed.Code, § 49061, subd. (b); 34 C.F.R. § 99.3.)

Pupil or education records do not include “records of instructional, supervisory, and administrative personnel…which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute.” (20 U.S.C.

§ 1232g(a)(4)(B)(i); Ed. Code, § 49061, subd. (b); 34 C.F.R. § 99.3.)

Special education law does not specifically address motions to quash subpoenas or subpoenas duces tecum. In ruling on such motions, OAH relies by analogy on the relevant portions of Code of Civil Procedure. Code of Civil Procedure section 1987.1 provides that a court may make an order quashing a subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.

Here, Student seeks an order quashing the subpoena issued by Redwood City on July 24, 2015, directing Charles Armstrong School to produce on August 7, 2015, any and all records and documents pertaining to Student. Student’s motion cites multiple arguments in support of quashing of Redwood City’s subpoena.

Redwood City’s subpoena duces tecum provides for Charles Armstrong’s compliance by sending the requested documents to the offices of Redwood City’s attorney by August 7, 2015, well before the scheduled hearing date. Special education law does not contain any provision authorizing prehearing discovery. A party does not have the power to use a subpoena to compel the production of documents before hearing. The applicable statutes and regulation securing the rights to present evidence and compel the attendance of witnesses all relate to the hearing itself. (20 U.S.C. § 1415(h); Ed. Code § 56505, subd. (e).)

Although a student’s education records can be requested by a student from a district at any time pursuant to Education Code section 56504, there is no authority which permits a district to compel prehearing production of education or other records held by a third party as attempted here by Redwood City. Because Redwood City is not entitled to use a subpoena to obtain conduct prehearing discovery, its subpoena duces tecum seeking production of such records is improper. Student’s motion to quash is granted.