California OAH special education order · March 10, 2021
Order Denying Motion to Compel Production of Records and Motion to Shift Costs
OAH Case No. 2021020338 · ALJ Tara Doss
OAH denied Student's motions to compel records and shift costs because there is no prehearing discovery, Fremont swore it produced the records, and Student showed no bad faith or frivolous conduct.
Summary
Student asked OAH to compel Fremont to produce Student's complete educational records and to shift costs to Fremont, arguing Fremont's incomplete response to a February 1, 2021 records request harmed Parents' right to representation and participation. Fremont responded with a sworn declaration from its Director of Special Education saying it sent records on February 4, 2021 and sent additional, inadvertently omitted records on March 8, 2021. The ALJ denied the motion to compel for three reasons: there is no right to prehearing discovery, Fremont attested it produced the records, and the late production is already an issue Student can raise at hearing. The ALJ denied cost-shifting because Student did not show Fremont acted in bad faith, frivolously, or solely to cause delay.
Why it matters
A late or incomplete response to a records request is usually best raised as a claim at the due process hearing, not through a motion to compel. Cost-shifting requires proof of bad faith or frivolous tactics, not just a slow or incomplete production.
Key authority cited
- 20 U.S.C. § 1415(b)(1)
- 34 C.F.R. § 300.501(a)
- Ed. Code, § 56504
- Gov. Code, § 11455.30
- Cal. Code Regs., tit. 5, § 3088
- Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026
People named in the order
- Tara Doss, Administrative Law Judge
Topics
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,
v.
FREMONT UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2021020338
ORDER DENYING MOTION TO COMPEL PRODUCTION OF
RECORDS AND MOTION TO SHIFT COSTS
MARCH 10, 2021
On February 9, 2021, Student filed a Request for Due Process Hearing, with the Office of Administrative Hearings, called OAH, naming Fremont Unified School District.
On March 4, 2021, Student filed a Motion to Compel Production of Student Records and a Motion to Shift Costs to Fremont. Student alleges Fremont failed to provide a complete copy of Student’s educational records in response to Student’s attorney’s February 1, 2021 request. Student alleges Fremont’s failure to provide a complete copy of Student’s educational records infringed on Parents’ right to representation and opportunity to meaningfully participate in the design of Student’s educational program.
On March 9, 2021, Fremont filed an opposition to Student’s motions. Fremont alleges it sent a copy of Student’s educational records to Student’s attorney on February 4, 2021, in response to the February 1, 2021 request. Further, Fremont alleges it provided additional records to Student’s attorney on March 8, 2021, after realizing it had inadvertently excluded the records from the records provided on February 4, 2021.
Fremont’s Director of Special Education attested to providing the records to Student’s attorney in a sworn declaration, under the penalty of perjury.
Parties have no right to formal prehearing discovery in special education due process hearings. However, the procedural safeguards of the Individuals with Disabilities Education Act allow parents the opportunity to examine all records relating to their child with respect to the identification, evaluation, and educational placement of the child; and the provision of a free appropriate public education to the child.
(20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.501(a).) Additionally, the California Education Code allows parents the right to examine and receive copies of all school records related to their child within five business days after a request for records is made. (Ed. Code, § 56504.)
In certain circumstances, an administrative law judge, called an ALJ, presiding over a special education proceeding, is authorized to shift expenses from one party to another, or to OAH. (Gov. Code, §§ 11405.80 and 11455.30; Cal. Code. Regs., tit.
5, § 3088; see Wyner ex rel. Wyner v. Manhattan Beach Unified School Dist. (9th Cir.
2000) 223 F.3d 1026, 1029 [“Clearly, [California Code of Regulations] § 3088 allows a hearing officer to control the proceedings, similar to a trial judge.”].) An ALJ may “order a party, the party’s attorney or other authorized representative, or both, to pay reasonable expenses, including attorney’s fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (Gov. Code, § 11455.30, subd. (a); Cal. Code. Regs., tit. 5, § 3088, subd. (a).)
“Actions or tactics” is defined as including, but not limited to, making or opposing motions or filing and serving a complaint. (Gov. Code, §11455.30, subd. (a); Code Civ.
Proc., § 128.5, subd. (b)(1).) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. (Gov. Code, § 11455.30, subd. (a);
Code Civ. Proc., § 128.5, subd. (b)(2).)
Student’s Motion to Compel fails for three reasons. First, there is no right to prehearing discovery in special education cases. Second, Fremont’s Director of Special Education attested to providing Student’s records on February 4, 2021, and March 8, 2021. Finally, Fremont’s failure to timely provide records is an issue in Student’s complaint for which Student may seek a remedy at a due process hearing.
Therefore, Student’s Motion to Compel is denied.
Student’s Motion to Shift Costs fails because Student did not show that Fremont’s actions related to providing Student’s educational records were in bad faith, frivolous, or for the sole reason of causing unnecessary delay. Therefore, Student’s Motion to Shift Costs is denied.
ORDER
1. Student’s Motion to Compel is denied.
2. Student’s Motion to Shift Costs is denied.
3. All hearing dates will proceed as scheduled.
Tara Doss Administrative Law Judge Office of Administrative Hearings