The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Springville-Griffith Institute Central School District
Tronolone & Surgalla, P.C., attorney for petitioner, Andrew K. Cuddy, Esq., of counsel
Hodgson Russ, LLP, attorneys for respondent, Jerome D. Schad, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision holding that petitioner could afford to pay a reasonable fee to respondent for the cost of copying certain records of his son, and limiting such fee to ten cents per page. The Board of Education cross-appeals from that portion of the decision that limited its copying fee to ten cents per page. It contends that the hearing officer lacked jurisdiction to make that determination. The appeal must be dismissed. The cross-appeal must also be dismissed.
Petitionerís son was 14 years old and in the eighth grade when the hearing in this proceeding was held in April 2001. The studentís parents are separated, and he lives with petitioner. He had been placed by respondent in a special education class in the Hopevale Union Free School District (Hopevale), which is a special act school district in Hamburg, New York (Exhibit EE).
On January 2, 2001, petitioner submitted a written application to review his sonís educational records to respondentís special education office (Exhibit 18). He was advised to return on January 9, 2001, when he and two advocates examined the studentís records. At that time, he asked for copies of his sonís records that he had either not seen before, or that had been destroyed in a fire at his former premises. He was advised by one of respondentís employees that there was a fee of 25 cents per page to copy documents, and that copies of the records that petitioner sought would cost approximately 61 dollars (Transcript p. 253). One of the advocates reportedly informed the employee that petitioner could not afford to pay for the copies he sought.
By letter dated January 9, 2001, petitioner asked respondent for an impartial hearing because he had been unable to obtain copies of his sonís records without paying a copying fee (Exhibit 6). He asserted in that request that he could not afford to pay the sum of 61 dollars for copies of his sonís records. At the hearing in this proceeding, petitioner testified that his advocates had prepared the letter requesting a hearing for him and that he had not disclosed his income to them.
An impartial hearing officer was appointed, but the hearing did not take place because petitioner withdrew his hearing request in late January (Exhibit B). Petitioner reportedly withdrew his hearing request to facilitate a reconsideration of his sonís placement by respondentís Committee on Special Education (CSE). On January 31, 2001, the CSE met with the studentís parents to review his placement. The CSE recommended that the student remain in his placement in Hopevale (Exhibit EE). Petitioner reportedly would prefer to see his son return to respondentís district.
On April 14, 2000, petitioner through his attorney requested an impartial hearing on the matter of obtaining free copies of his sonís records (Exhibit C). The hearing was held on May 1 and May 17, 2001. At the hearing, petitioner asserted that respondentís refusal to provide free copies of his sonís educational records deprived him of his due process right to challenge the studentís placement. Both parties relied upon the provisions of the uniform procedural safeguards notice for parents which the New York State Education Department requires school districts to use pursuant to Policy 98-09 (Exhibit 23). That document provides, in material part, that:
You have the right to ask for and read records about your child unless the district has been legally notified in writing that your rights have been terminated under State law (such as special cases of guardianship, separation and divorce). You have the right to ask for and receive explanations and interpretations of the records from your school district. You may also receive copies of your childís educational records. The school district may charge a reasonable cost for copies of the records. However, if you cannot afford the fee, you still have the right to see, review and receive the records.
I note that respondent has annexed a copy of the June 2001 Policy 01-05 to its answer. That document includes a revised uniform procedural safeguards notice, which amends the language about obtaining copies of records to read:
You also have the right to ask that the school district provide you with a copy of your childís educational records if it is the only way that you can inspect and review the records. The school district may charge a reasonable cost for copies of the records unless the fee prevents you from inspecting or reviewing your childís records.
However, the notice promulgated pursuant to Policy 98-09 is the relevant document in this appeal because it was in effect in January 2001, when petitioner requested copies of his sonís records. Both notices reflect the provisions of 34 C.F.R. ß 300.566(a), which provides that:
Each participating agency may charge a fee for copies of records that are made for parents under this part if the fee does not effectively prevent the parents from exercising their right to inspect and review those records.
In his decision which was rendered on June 7, 2001, the hearing officer found that an essential aspect of his duty to conduct a fair hearing was to ensure that parents have access to the school records of their child. Accordingly, he held that he had jurisdiction to entertain petitionerís complaint about obtaining his sonís records. The hearing officer noted that respondentís own regulation indicated that copies of records would be provided when requested at a reasonable cost that is the actual cost of duplication. He held that respondent had the right to ask for compensation for its actual costs in reproducing the requested records. He noted that respondent acknowledged that it had never done a study to determine the actual cost of duplicating records, and he directed it to charge no more than ten cents per page for copying until such time as it performs a study to determine its actual costs. With regard to petitionerís claim that he could not afford to pay for the cost of copying his sonís records, the hearing officer noted that petitioner disclosed at the hearing that his annual income was approximately 44,000 dollars. He further noted that petitioner had conceded that if asked to pay on January 9, 2001, he probably could have afforded to do so (Transcript pp. 276-277).
Petitioner contends that respondentís refusal to give him copies of his sonís records at no cost denied him the opportunity to be an equal participant in his sonís education decision-making process, in violation of federal and state law. He asserts that respondent did not inquire into his ability to pay for the copies, and that he was not afforded an opportunity to demonstrate his financial inability to pay for them. I find his contention to be disingenuous, in view of his acknowledgement that he probably could have paid, when questioned about it at the hearing.
There is no unqualified right under either the Individuals with Disabilities Education Act (IDEA) or Article 89 of the New York Education Law to receive a copy of a studentís records at no cost. As noted above, federal regulation permits a school district to charge a fee for copying a studentís records for his or her parents, provided that it does not effectively prevent the parents from exercising their right to inspect and review those records. Having reviewed the 300-page transcript and the numerous exhibits that were in the record considered by the hearing officer, I find that there is no basis to conclude that the imposition of a copying fee by respondent effectively prevented petitioner from examining his sonís school records.
The Board of Education contends that the hearing officer properly concluded that petitioner was not entitled to receive free copies of his sonís educational records, but that he exceeded his jurisdiction by directing it to charge not more than ten cents per page for copying records for parents. Although there is another procedure for pursuing issues arising under the Family Educational Rights and Privacy Act (see 20 U.S.C. ß 1232g), as respondent points out, I must note that the IDEA and its implementing regulations also afford parents access to a studentís educational records (34 C.F.R. ßß 300.501, 300.562). I agree with the hearing officer that he had jurisdiction to consider the matter.
As to the matter of the ten cents per page limit for copies imposed by the hearing officer, I must note that he did not preclude respondent from charging more if its actual costs were higher. He simply directed that respondent not charge more than ten cents per page if it could not document that its costs were higher. While I am aware that school districts in New York are allowed to charge as much as 25 cents per page for copies of documents requested under New Yorkís Freedom of Information Law (N.Y. Pub. Off. Law ß 87[b][iii]), I find that there is no basis for me to disturb the hearing officerís order.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Albany, New York
May 21, 2002