California OAH special education order · May 17, 2021
Order Granting Motion to Compel Production of Student Records
OAH Case No. 2021030899 · ALJ Claire Yazigi
OAH ordered West Contra Costa to diligently search for Student's education records and file a sworn declaration, because unsworn emails saying the records might be in a warehouse were not competent evidence.
Summary
Student moved to compel West Contra Costa Unified School District to produce Student's educational records, which Student had requested on March 24, 2021. West Contra Costa did not dispute its duty to produce them. It said it had tried but did not have the records, and it attached staff emails suggesting the records were in a warehouse or had been sent to Student's new school. OAH granted the motion because the district offered no sworn declaration showing a diligent search, and it ordered the district to search, produce the records, and serve a declaration under penalty of perjury no later than the start of hearing. The declaration must state that the records were produced or explain why they cannot be, and name anyone believed to have them.
Why it matters
A district cannot avoid a records request by saying informally that the records are lost or elsewhere. OAH will require a diligent search and a sworn declaration explaining what happened to the records and who may have them.
Key authority cited
- 20 U.S.C. § 1415(b)(1)
- 34 C.F.R. § 300.613(a)
- 34 C.F.R. § 300.611(b)
- 20 U.S.C. § 1232g(a)(4)(A)
- Ed. Code, § 56043, subd. (n)
- Ed. Code, § 56504
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:
PARENTS ON BEHALF OF STUDENT,
v.
OAKLEY UNION ELEMENTARY SCHOOL DISTRICT AND WEST
CONTRA COSTA UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2021030899
ORDER GRANTING MOTION TO COMPEL PRODUCTION
OF STUDENT RECORDS
MAY 17, 2021
On May 10, 2021, Student filed a motion to compel West Contra Costa Unified School District to produce Student’s educational records. On May 13, 2021, West Contra Costa filed a response to Student’s motion.
APPLICABLE LAW
To guarantee parents the ability to make informed decisions about their child’s education, the Individuals with Disabilities Education Act grants parents of a child with a disability the right to examine all relevant records in relation to their child’s special education identification, evaluation, educational placement, and receipt of a free appropriate public education. (20 U.S.C. §1415(b)(1); 34 C.F.R.
§ 300.501(a) (2006)1; Ed. Code, §§ 56501(b)(3) & 56504.) The district must comply with a request to review records without unnecessary delay and before any meeting regarding an individualized education program, any due process hearing, or resolution session, and in no case more than 45 days after the request has been made. (34 C.F.R. § 300.613 (a).) Under California law, the parent shall have the right and opportunity to examine all school records of her child and to receive copies within five business days after the request is made by the parent, either orally or in writing. (Ed. Code, §§ 56043, subd. (n), 56501, subd. (b)(3), 56504.)
Parents’ due process hearing rights include the right to examine the student’s education records. (20 U.S.C. § 1415(b)(1); Ed. Code, § 56501(b)(3).) This access is a hallmark of the procedural protections afforded under the IDEA and a prerequisite to a full and fair administrative hearing. The IDEA does not have a separate definition of educational records, and adopts the Family Educational Rights and Privacy Act definition of education records by reference. (34 C.F.R. § 300.611 (b).) In general, educational records are defined as those records which are personally identifiable to the student and maintained by an educational agency. (20 U.S.C § 1232g(a)(4)(A); 34 C.F.R. §§ 99.3; Ed. Code, § 49061, subd. (b) [similarly defines pupil record].)
DISCUSSION
Student’s motion to compel alleges that Student made a request to West Contra Costa for educational records on March 24, 2021, but does not include a copy of the request. Student’s motion alternately refers to the records sought as “educational records,” “all student records,” and “all school records.” The motion also alleges that West Contra Costa has failed to produce educational records as of May 10, 2021, but does not include an affidavit attesting to that fact.
In its response, West Contra Costa does not argue that it is not obligated to comply with Student’s documents request. Rather, West Contra Costa contends that it has made efforts to comply, but that it does not have Student’s records. To support its contention, West Contra Costa attached to its motion email threads between West Contra Costa staff, suggesting that Student’s records may have been moved to a warehouse or may have been forwarded to Student’s new school. West Contra Costa has not provided any affidavit, made under penalty of perjury, by any custodian of records or other person most knowledgeable attesting to these facts or usual business practices regarding the retention of student records. West Contra Costa has not provided any competent evidence demonstrating that the specific records Student seeks had been diligently searched for and a reasonable inquiry had been made and either had in fact been produced or could not be produced.
West Contra Costa is ordered to make a diligent search and reasonable inquiry to locate Student’s “educational records” as defined above. West Contra Costa is ordered to provide a declaration under penalty of perjury signed by a West Contra Costa employee attesting to the fact that West Contra Costa made a diligent search and reasonable inquiry to locate the specific items requested in Student’s motion. The declaration must state either that the items have been provided to Student’s attorney or that West Contra Costa is unable to provide the document and the reason West Contra Costa cannot provide the document, e.g., the document never existed; or has been lost or stolen; or has been destroyed; or is not in the possession, custody or control of West Contra Costa. If the requested documents are no longer in the custody or control of West Contra Costa, the declaration must state the name and address of anyone believed to have the document. Further production of Student’s records and the declaration of a West Contra Costa employee must be served on Student and OAH no later than the date and time set for commencement of hearing.
Claire Yazigi Administrative Law Judge Office of Administrative Hearings