Draft Report of Psychologist’s Evaluation and Emails of a Fleeting Nature with Casual Discussions Are Not “Education Records” to which Parents Are Guaranteed Access under the IDEA

Category: Education Matters
Date: May 18, 2017 10:34 AM

E.D. attended Colonial School District in Pennsylvania during her kindergarten and first grade school years.  E.D.’s parents filed a lawsuit claiming, among other things, that the District denied E.D. a free appropriate public education under the Individuals with Disabilities Education Act.  The lawsuit sought review of the parents’ unsuccessful claims at the administrative level.  Both parties filed motions asking the court to rule in their favor.

E.D.’s parents argued that the administrative due process hearing was “fundamentally unfair” because of procedural irregularities prior to the commencement of the actual hearing.  Specifically, they claimed that the District withheld necessary evidence and they were unable to use that evidence. 

E.D.’s parents claimed the District withheld emails that indicated that District personnel planned to retain E.D. in first grade because of lack of progress.  They argued the emails would have been valuable because District witnesses testified they were not going to retain E.D in the first grade.  E.D.’s parents also argued that a draft report of the school psychologist’s evaluation, which the District withheld, was relevant to the hearing officer’s decision about compensatory education.

The Court noted that a student challenging educational placement under the IDEA is afforded an array of procedural guarantees.  A hearing officer can, in limited circumstances, find that a child did not receive a FAPE based on procedural violations.  In order to make such a determination on procedural grounds, the hearing officer must find that the procedural inadequacies: (1) impeded the child’s right to a FAPE, (2) significantly impeded the parents’ opportunity to participate in the decision-making process, or (3) caused a deprivation of educational benefits.  Further, a school district’s failure to comply with the procedural requirements of the IDEA will constitute a denial of a FAPE only if such violation causes substantive harm to the child or his parents.

The Court also observed that access to relevant education records is guaranteed under the IDEA, and failure to have access could invalidate a due process hearing.  The Court therefore went on to decide whether the withheld documents are “education records” in order to determine whether E.D.’s parents were deprived of their procedural rights.  According to the IDEA’s implementing regulations, the definition of an education record under the IDEA is analogous to the definition found in the Family Educational Rights and Privacy Act (FERPA).  FERPA defines education records as “records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 

The Court first found that the draft report of the school psychologist’s evaluation was a transitional document and still subject to heavy editing and revision.  (For example, it was dated prior to the events described in the report and repeatedly referenced another student.)  The Court also concluded that the draft report was not intended for dissemination or publication, and showed no real probative value or any hallmarks of credibility.  Indeed, there was no reason to believe that the draft report was “maintained” by the District: it was not circulated among staff nor did the District rely on the draft report to make any decisions about E.D.’s educational accommodations.  Therefore, it did not fall within the definition of “education records.”

Similarly, the Court found that the emails concerning whether E.D. should be retained in first grade are not education records.  The Court looked to a California federal district court decision that held that “an email is an education record only if it both contains information related to the student and is maintained by the educational agency.”  The Court then found that the emails appeared to be casual discussions, not records “maintained” by the District.  Relying on the same case, the Court reasoned that emails have a “fleeting nature,” and unless the District kept copies of the emails related to E.D. as part of its record filing system with the intention of maintaining them, the Court could not reach the conclusion that every email which mentioned E.D. is an education record.   

Since the withheld documents do not qualify as “education records” to which E.D.’s parents were guaranteed access, there was no violation of their procedural rights under the IDEA prior to the due process hearing.  Therefore, there was no denial of FAPE on this basis.


Because this case was decided by the District Court for the Eastern District of Pennsylvania, it is not binding on either state or federal courts in California.  However, it is instructive regarding the factors a court will consider when evaluating whether a document is an educational record, giving parents a right to access it under the IDEA.

E.D. v. Colonial School District (E.D. Pa. 2017) __ F.Supp.3d __ [2017 WL 1207919].

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