LRP National Institute E-mail

Electronic Communications: The Legal Consequences of Clicking “Send” Karen Haase TUESDAY, MAY 6 • 1:15 - 2:30 p.m.

WEDNESDAY, MAY 7 • 9:45 - 11 a.m.

An e-mail by any other name    

A Business Record A Public Record An Education Record A Special Education Record

 A Hearing Exhibit

E-mail as Business Record

E-mail as Business Record 

Rule 26 – Duty to disclose; general provisions governing discovery.

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Rule 37 – Failure to make or cooperate in discovery; sanctions.

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Rule 37(f) – Safe harbor.

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Requires “litigation hold” memoranda when there is “pending or reasonably anticipated litigation.”

G.W. v. Rye City Sch. Dist., 61 IDELR 14 (S.D.N.Y 2013), aff'd, 62 IDELR 254 (2d Cir. 2014) 

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Private school student.

• Parents privately placed; kept telling school student would return next year.

• Parents sued, claiming draft IEPs inadequate and predetermined.

School system purged e-mails every 6 months.

• Parents claimed spoliation.

G.W. v. Rye City Sch. Dist., 61 IDELR 14 (S.D.N.Y 2013), aff'd, 62 IDELR 254 (2d Cir. 2014)  Hearing officer: Found for school.  Federal court – No evidence of bad faith on school’s part.

– No evidence that missing e-mails were relevant.

– School psychologist printed and retained all e-mails in her file.

Mason City Sch. Dist., 61 IDELR 87 (SEA OH 2013)  Student placed in out-of-district day school.  Parent asked for videos, pictures, e-mails, and other documents.  School asked for parent to limit scope of her request.

Mason City Sch. Dist., 61 IDELR 87 (SEA OH 2013)  Parent’s response, “I am requesting all e-mail or other communications that have gone between staff at (the district) and staff at the (WCLC) pertaining to (the student).”  School: You can look at our stuff, but we don’t control contracted school.

Mason City Sch. Dist., 61 IDELR 87 (SEA OH 2013)  Ohio Department of Education: No FERPA violation by resident district.

– Offered to allow parent to review.

– Provided all education records that resident district “maintained.”

– Parent may wish to pursue FERPA remedies against contracted district.

E-mail as Public Record

E-mail as Public Record 

In most states, e-mails are public records – even if they are on your home computer.

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Nebraska Attorney General’s Office, Disposition Letter re Hyannis Area Schools (2007).

Kokomo-Center Twp. Consol. Sch. Corp., 110 LRP 55120 (SEA IN 06/16/09) 

Parent asked to see student’s testing protocols.

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School required parent to complete Public Records Act Form.

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Indiana Department of Education found violation of FERPA and IDEA.

Ellis v. Cleveland Mun. Sch. Dist., 7 FAB 15 (N.D. Ohio 2004) 

Student suing over corporal punishment by subs.

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Sought records involving allegations of physical altercations.

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School claimed student records, therefore protected by FERPA and not public records.

Ellis v. Cleveland Mun. Sch. Dist., 7 FAB 15 (N.D. Ohio 2004) 

Court: School must disclose.

– Records not “education records” as defined

by FERPA, therefore public records.

– “Congress did not intend FERPA to cover records directly related to teachers and only tangentially related to students.”

Retention Implications  Must follow state retention statutes.  “Correspondence concerning students”: Maintain until graduation or after 3 years’ absence.  Special education records: Maintain 5 years after no longer needed for services.

E-mail as Education Record

E-mail as Education Record 

FERPA: “Education record” means materials which “contain information directly related to a student [and] maintained by an educational agency.”

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Includes “print or computer media.”

Owasso Indep. Sch. Dist. v. Falvo, 36 IDELR 62, 534 U.S. 426 (2002)     

Parent sued over peer grading.

Supreme Court: No FERPA violation.

Grades not “education records” until recorded in grade book.

Peer-graded items were not “maintained” – students only handled items for a few moments.

Student graders not “person acting for an educational institution.”

S.A. v. Tulare County Office of Educ., 53 IDELR 111 (E.D. Cal. 2009) 

Parents asked for copies of all e-mail sent or received by the district concerning or personally identifying their son with autism.

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District sent only e-mails which were printed and in file.

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Parents claimed all e-mails that specifically identify the student are education records.

S.A. v. Tulare County Office of Educ., 53 IDELR 111 (E.D. Cal. 2009) 

California Department of Education upheld the district's interpretation.

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Parents appealed, arguing that all e-mails are “maintained” in the district's electronic mail system and could be located with technical search.

S.A. v. Tulare County Office of Educ., 53 IDELR 111 (E.D. Cal. 2009) 

Court: Ruled for school.

• FERPA contemplates that education records be kept in one place.

• "An e-mail may be sent, received, read, and deleted within moments.”

• Rejected idea that all e-mails on any computer that identify student are “maintained” by school.

Washoe County Sch. Dist., 13 FAB 10 (SEA NV 2009)  Parents requested “complete copy” of child's education records.

– Parents noticed e-mails they had sent school were missing.

– School responded that e-mails, unless archived by staff, were deleted from its server within 60 days.

– Parents filed state department of education complaint.

Washoe County Sch. Dist., 13 FAB 10 (SEA NV 2009)  Department: Violation of FERPA and IDEA.  FERPA – Defines "record" to mean any information recorded in any way, including computer media.

– Didn’t include copies upon request.

Red Lion Area Sch. Dist., 15 FAB 16 (SEA PA 2011)  Long history of litigation between family and school.  Parents demanded all e-mail.

Red Lion Area Sch. Dist., 15 FAB 16 (SEA PA 2011)  “Correspondence among members of the IEP team and/or district staff that may or may not consider themselves or be considered IEP team members either through e-mail or hard copy communication.”  The district provided only e-mails from student's permanent file.

Red Lion Area Sch. Dist., 15 FAB 16 (SEA PA 2011)  Produced two bankers' boxes worth of documents to the parents.  District had created two storage archives for student on its server.  Hearing officer: No violation of FERPA.

E-mail as Special Education Record

E-mail as Special Education Record 

IDEA requires notification to parents of special education students prior to deleting education records which contain “personally identifiable information collected, maintained, or used.”

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If e-mail is special education record, you’ll have to notify before hitting “delete.” (!!)

Washoe County Sch. Dist., 13 FAB 10 (SEA NV 2009)  Parents requested “complete copy” of child's education records.

– Parents noticed e-mails they had sent school were missing.

– School responded that e-mails, unless archived by staff, were deleted from its server within 60 days.

– Parents filed state department of education complaint.

Washoe County Sch. Dist., 13 FAB 10 (SEA NV 2009)  IDEA – Requires districts to inform parents when personally identifiable information is no longer needed.

– School was obligated to inform the parents that the information in the messages was no longer needed.

– “Safe harbor” of Rule 27 not protection in IDEA context.

Rachel L. v. State of Hawaii, Dep’t of Educ., 59 IDELR 244 (D. Hawaii 2012) 

Parent claimed she was excluded from IEP process.

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Staff repeatedly tried to schedule IEP meeting with mother.

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Parent claimed she didn't receive notice of meetings because school sent notices to old e-mail address.

Rachel L. v. State of Hawaii, Dep’t of Educ., 59 IDELR 244 (D. Hawaii 2012) 

Court: Ruled for school.

• Parent continued using that same e-mail address to communicate with the district.

• Parent e-mailed school telling it to use that e-mail address.

• School attempted to use other means to contact parent.

R.P. v. Alamo Heights Indep. Sch. Dist., 60 IDELR 60 (5th Cir. 2010) 

Nonverbal student needed AT evaluation.

• Team requested in spring 2008.

• Evaluation completed but not reviewed until June 2009.

• Two intervening IEP meetings.

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AT ultimately implemented.

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Parents sued claiming delay denied FAPE.

R.P. v. Alamo Heights Indep. Sch. Dist., 60 IDELR 60 (5th Cir. 2010)  

School: Assessment conducted on time and discussed by IEP team.

Court: Factually untrue.

• January 2009 e-mail from school psych.

• Asked about assessment.

• Confirmed not discussed at IEP team meetings.

E-mail as Hearing Exhibit

A.C. v. Shelby County Bd. of Educ., 60 IDELR 271 (6th Cir. 2013) 

504 student with diabetes and peanut allergy.

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Tension between mom and principal immediately.

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Voice mail:

A.C. v. Shelby County Bd. of Educ., 60 IDELR 271 (6th Cir. 2013) Hey, Barbara. I know we're having a meeting tomorrow about [student]. This is Kay Williams from Bon Lin. [Mom] is here causing all kinds of confusion and [teacher] has already broken down and cried. This woman is out to lunch. My teacher had ten minutes for lunch because she's trying to make sure there are no peanut people by her, and now she claims the kid did sit by her with peanut butter. I mean, yet she doesn't want the child sitting at another table because she doesn't want her singled out. I don't know what to do with this lady anymore. She does not reason or have any common sense. So you know that since I am the one with common sense, I am going to have a little problem with her. But at any rate, love ya, and I'll see you tomorrow unless you want to call.

A.C. v. Shelby County Bd. of Educ., 60 IDELR 271 (6th Cir. 2013) 

Mom filed OCR complaint on other issues; school lost every issue.

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School allowed mom to write own HCP, nurses uncomfortable implementing.

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Constant blood sugar issues.

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Principal reported mom to DCS for medical neglect.

A.C. v. Shelby County Bd. of Educ., 60 IDELR 271 (6th Cir. 2013) 

Mom sued, claiming report of abuse made in retaliation for advocacy.

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Court: E-mails could support claim.

• Principal referenced parent’s “harassment” of school.

• Showed concern about parent not for student.

Falls Church (VA) City Pub. Schs., 112 LRP 50238 (OCR 08/31/12) 

Mother sent numerous e-mails to teachers throughout the year.

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Teachers (including algebra teacher) replied for most of school year.

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By March, algebra teacher had enough.

Falls Church (VA) City Pub. Schs., 112 LRP 50238 (OCR 08/31/12) 

Algebra teacher • E-mailed principal that mom’s e-mails were lies and school should “cut her off.”

• Replied to mom, “I don’t have time for your lies.”

• “Be careful with your ‘statements of fact’ because my attorney has made me very aware of the slander laws ... and my options for legal recourse.”

Falls Church (VA) City Pub. Schs., 112 LRP 50238 (OCR 08/31/12) 

Mom complained to OCR claiming e-mails were retaliation.

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OCR: Insufficient evidence of retaliation.

• Teacher genuinely believed parent was lying.

• No adverse action; teacher continued to reply to e-mails.

• Threat of litigation true, and school didn’t influence teacher’s decision to seek legal counsel.

M.J.C. v. Special Sch. Dist. No. 1, 58 IDELR 288 (D. Minn. 2012) 

Parents requested evaluation; student diagnosed with ADHD but parent would not provide documentation.

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Staff e-mails referred to mom as “difficult,” “hard to work with.”

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Court: Violation of child find.

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School didn’t want to verify because didn’t want to work with mom.

Practical Pointers

Practical Pointers     

Find, review, and comply with your e-mail retention policy.

Comply with state retentions schedule.

Keep relevant special education e-mails in hard copy.

Notify before deletion.

Think about other methods of digital communication: • Text messages.

• Social media (Facebook, Twitter, Instagram, etc.).

• Evernote.

Practical Pointers 

Remember the federal rules (litigation hold).

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Auto spell-check, proofing, etc.

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Instill a culture of oral, not e-mail, griping.

Practical Pointers 

Personal devices aren’t exempt.

• Probably not “education records.”

• Could be business records or hearing exhibits.

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Personal identifiers won’t save you.

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Obtain parent consent before e-mailing records.

Questions?