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SUBPOENAS FOR EDUCATION RECORDS

A GUIDEBOOK TO BEST PRACTICES

BROWARD COUNTY PUBLIC SCHOOLS

RECORDS RETENTION

754-321-3150

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BEST PRACTICES This guidebook is a reference tool for those who manage student records. It will provide an overview of the process, contacts and resources. It is advisable to seek input from General Counsel for any question(s) outside the scope of this document. This booklet is NOT meant to interpret any laws nor is it meant to provide legal advice.

Please contact the Office of the General Counsel at 754-321-2050 for any legal questions

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Table of Contents

A. INTRODUCTION 4

B. DEFINITION 4

C. RECORDS CUSTODIAN 5

D. STEPS TO RESPOND TO SUBPOENA 5-7

E. PENALTIES 7

F. NO RECORDS 7-8

G. MISCELLANEOUS 8

FLOWCHARTS 9-11

RESOURCES 12

APPENDICES

1. NOTICE OF INTENT TO COMPLY (10 DAY LETTER) 13

2. CERTIFICATION OF NO RECORDS 14

3. CERTIFICATION OF AUTHENTICITY 15

4. AUTHORIZATION FOR RELEASE/REQUEST 16

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A. INTRODUCTION The Family Educational Rights and Privacy Act (FERPA) sets out requirements for the protection of the privacy of parents and students as it relates to educational records. See 20 U.S.C. § 1232(g) and F.S. §§ 1002.22, 1002.221; School Board Policy 5001.1

Education Records are defined as those records that are:

(1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party

acting for the agency or institution. 34 C.F.R.§ 99.33.

Schools are charged with safeguarding educational records. A parent or eligible student (one who is 18 years of age or older) is almost always entitled to view the educational records of the student.1 Parents may also designate a third party, such as an attorney, to be permitted to view the educational records of the student. In that instance, the parent must sign a release, detailing the parent’s agreement that the third party may appropriately have access the student’s educational records. However, in many instances, schools receive subpoenas from attorneys, requesting anything from attendance records of a particular student to the student’s entire educational record. Upon that occasion, the school is obligated to provide educational records only after it makes a “reasonable effort to notify” the parent/guardian/adult student of the order or subpoena in advance of compliance. 34 CFR section §99.31(a)(9)(ii).

B. DEFINITION OF SUBPOENA A subpoena is an order from an officer of the court (judge, attorney, clerk of court) directed to an individual commanding the individual to appear in court on a certain day to testify or produce documents in a pending lawsuit. Some subpoenas can be used to compel testimony (subpoena ad testificandum). Criminal and/or civil case subpoenas are often used to obtain documents and records or other tangible items (subpoena duces tecum).

1 One exception to this would be if a Court Order limits a parent’s right to access the educational records of his/her child, but that instance would be a rare event.

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A person who receives a subpoena for the production of educational documents or to appear in court should take the necessary steps to comply with the demand. Failure to comply with a subpoena may lead to contempt of court.

C. RECORDS CUSTODIAN Generally, subpoenas for education records are addressed to the Records Custodian. The Principal is the Records Custodian of the school but may designate a staff member to act in that capacity in his or her stead. The Records Custodian receives, manages, inventories, retrieves, and safeguards the student records. The Records Custodian must have a backup person trained to follow the same procedures.

D. STEP BY STEP PROCEDURE TO RESPOND TO A SUBPOENA 1. DETERMINE IF THE SUBPOENA WAS PROPERLY SERVED

• Did the subpoena arrive at the school by way of a process server or a service

that requires a signed and dated return receipt? If the answer is yes, the subpoena was properly served.

• If the subpoena was received by regular mail or email, the subpoena was not properly served, the school is not obligated to comply with the subpoena.2 Refer any concerns regarding an improperly served subpoena to the Office of the General Counsel.

2. READ THE SUBPOENA! TIMELY RESPONSE IS IMPERATIVE Read the subpoena to determine what is being requested and/or who is being asked to respond. Ask the following questions:

• Is the subpoena for records? • Is the school maintaining the records? • What is the due date for response, i.e. how much time is there to respond?

Note the subpoena’s response due date and plan accordingly.

2 There are exceptions to this rule, discussed under F. Miscellaneous section. If the subpoena arrives by mail or email, please forward it to the General Counsel’s Office for review and to receive guidance on how to proceed.

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3. GATHER THE EDUCATIONAL RECORDS • Make sure your search includes TERMS panels, registration documentation,

ESE, 504 plans, discipline, teacher folders, etc. • Some of the items not considered educational records include the

following: o Records kept and/or used as a personal memory aid and which are

not accessible or revealed to any person but the maker of the record; o Records of the law enforcement unit assigned to the school; o Records that relate, exclusively, to the individual in that individual’s

capacity as an employee; o Peer-graded papers before they are collected and recorded by a

teacher.

4. SEND OUT NOTICE OF INTENT TO COMPLY - 10 DAY LETTER • While gathering the educational records, simultaneously prepare the 10 day

letter. A sample 10 day letter is found on page 13. • FERPA obligates educational institutions to notify parents or the eligible

student of the institution’s intention to comply with a subpoena. Keep a copy of the letter for your records.

• Once the letter is sent, the educational institution is required to wait “a reasonable time” for the parent to receive the letter and object by noticing the court of his/her objection to the release of the records. (Objecting to the release of the educational records is a rare occurrence.)

• The “reasonable time” to wait has been construed as 10 calendar days. • Alert subpoenaing party that you are obligated under FERPA to notify

parent/guardian/adult student of the request prior to responding.

5. CALCULATE COST OF COMPLYING WITH SUBPOENA • Policy 5100.1, outlines the schedule of fees the SBBC charges. The invoice

must reflect these fees:

.15¢ Per single sided copy

.20¢ Per double sided copy

• Check the number of pages to determine cost of reimbursement and prepare

invoice. You may include cost for postage. • Send invoice of cost to the requesting party. • The requester of the records should forward a check made out to The School

Board of Broward County, Florida, prior to the release of records.3 3 This is not always possible because of time constraints.

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• You may condition the forwarding of the records upon the receipt of a check from the requester, per FL. Rules of Civil Proc., Rule 1.410(c).

6. CERTIFY THE AUTHENTICITY OF THE RECORDS If requested, the Records Custodian is responsible for verifying that the copies are true and accurate copies of the originals. Sometimes the party issuing the subpoena supplies a form for that purpose. Many times that form requires notarization. Since many schools do not have a notary on staff, the Records Custodian may use the Certification of Authenticity and attach that form to the records. See form on page 15.

7. MAIL THE RECORDS

• After the 10 calendar days have expired, send records to requester. • Best practice is to send via Certified US Mail. Make sure to document day

mailed.

E. PENALTIES FOR FAILING TO COMPLY WITH A LAWFULLY ISSUED SUBPOENA Failing to comply may result in civil or criminal contempt of court. Contempt is defined as “a refusal to obey any legal order, mandate or decree, made or given by any judge relative to any of the business of the court, after due notice thereof.” F.S. § 38.23

• Civil contempt encourages the party in contempt to follow the court’s orders. • Criminal contempt punishes a party for failing to comply with an order. • Both are punishable by fines, imprisonment, and other court ordered

sanctions.

F. NO RECORDS

1. CERTIFICATION OF NO RECORDS • If the school is not in possession of the requested records, the requester

must be notified by a Certification of No Records. This form may found at http://www.broward.k12.fl.us/ets/css/recret/recordsret/forms.html. Sample found on page 14.

• If the records have been transferred to another school/location, email/send the Certification of No Records to the requesting party and a copy of the

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subpoena to The Office of The General Counsel (pony the original after emailing a copy as subpoenas are time sensitive).

• If the records have been archived and sent to Records Retention, email/send the Certification of No Records to the requesting party indicating that the location served no longer holds the records. Then forward the original subpoena via pony to:

Supervisor, Records Retention, 7720 W. Oakland Park Blvd, 3rd Floor

Sunrise, Florida 33351

2. EXEMPTIONS TO NOTIFICATION REQUIREMENT

There are some instances in which a school may respond to a court order or lawfully issued subpoena without first making a reasonable effort to notify the parent/guardian/adult student with the Notice of Intent to Comply. These include:

• When a Federal grand jury subpoena issues and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed.

• When a subpoena is issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed.

G. MISCELLANEOUS

3. SUBPOENAS FOR DEPOSITION/TESTIMONY

• Some subpoenas command an individual to appear for a deposition or for hearing. These subpoenas must be personally served.

• The individual who receives a subpoena for deposition or testimony should contact the individual issuing the subpoena to confirm its receipt.

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SUBPOENAS FLOWCHART 1

See Flowchart 2

Review requirements

Records not located at school

Where are Ed Records?

Records located at school

Subpoena is served

SCHOOL

Records already archived

Forward to Records Retention

Records at another School:

Forward to General Counsel’s Office for routing

See Flowchart 3

Process completed

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SUBPOENAS FLOWCHART 2

Prior notice needed, send 10 day letter to last

known address or email

Mail records via Certified Mail

If no objections filed, mail records to requester 10 calendar days after notice sent to adult student parent/guardian

No prior notice needed, mail/email

requester invoice for payment

Process completed

Send invoice to requester

Determine if subpoena is exempt from

notification requirement

Gather records and prepare invoice

Send Notice of Intent to Comply -10 day letter

Subpoena for active/non-archived records

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SUBPOENAS FLOWCHART 3

Scan Subpoena

Subpoena served at school for archived education records

Email subpoena to: Supervisor of Records

Retention and send originals via Pony

Records Retention will send the 10 day letter if

required and invoice

Records are mailed to requester 10 days after adult student

parent/guardian sent 10 day letter.

Process complete

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RESOURCES

EMPLOYEE RELATIONS 754-321-2140

EMPLOYMENT SERVICES (f/k/a Personnel Records) 754-321-0127

EQUAL EDUCATIONAL OPPORTUNITIES 754-321-2150

OFFICE OF THE GENERAL COUNSEL 754-321-2050

PRIVACY OFFICER 754-321-1914

PUBLIC RECORDS OFFICE (PRR’s) 754-321-2300

RECORDS MANAGEMENT LIASON OFFICER 754-321-3151

RECORDS RETENTION 754-321-3150

SPECIAL INVESTIGATIVE UNIT 754-321-0725

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SCHOOL / LOCATION LETTERHEAD [Instructions: Delete these instructions for final version. This template may be used upon receipt of a subpoena or court order requiring the disclosure of records or the testimony of a school employee in a legal proceeding (deposition, court hearing in criminal or civil matters, or administrative proceedings involving employee misconduct or student discipline.) Please specify the appropriate tribunal (court, administrative agency, hearing officer, etc.) below and mark all applicable boxes. If the student is a general education adult student (age 18 or over or emancipated), address this notice to the student only. If the student is an ESE adult student, address the letter to both, parent and student.]

NOTICE OF INTENT TO COMPLY WITH SUBPOENA / COURT ORDER

___________________, 201_

Name & address of Parent / Guardian / Adult Student [Case Name: ___________v ____________] [Tribunal: ___________________________] Case No. ________________] Dear ______________________________: Enclosed please find a copy of a subpoena or court order which was received on ______________, 201_. The subpoena or court order requires one or more of the following actions: □ The disclosure of student information/records of ________________________ (Name); DOB:_______. □ The testimony (under oath) of a school district employee in the above-noted case. During the testimony, the employee under subpoena may be required to disclose information concerning the student, including information from his/her educational record. School District employees are required by law to comply with lawfully issued subpoenas and with court orders. According to the Family Educational Rights and Privacy Act, the District is required to notify you in advance that the undersigned intends to comply with the subpoena or court order. You need not take any action except if you wish to file objections to the subpoena or court order. If you have such objections, please take whatever steps you deem appropriate and file your written objections with the court in the legal proceeding noted in the subpoena or court order, within 10 calendar days of this letter or before the date stated in the subpoena or court order, whichever is earlier. The undersigned will comply as directed or as provided by law unless you provide confirmation of, the filing of your objection, if any, with the court. To prevent the school or employee from disclosing information or records you deem objectionable, a new court order must be received prohibiting the disclosure or describing in detail the information not to be disclosed. Your prompt response is appreciated.

Sincerely, Principal / Administrator (signature) Enclosure

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