The audio recording of special education team meetings [“PPTs”] by parents and advocates has become a relatively accepted and common practice. Technically, school districts are only obligated to permit the recording of such meetings when doing so would enable the parent to effectively participate in the development of the student’s individualized education plan [“IEP”] or as an accommodation to the parent’s disability. (See guidance from OSEP here.) In fact, if a school district wanted to limit the recording of PPT meetings, it could do so by crafting a written policy and ensuring consistent implementation of the policy.
School districts may not be inclined to impose such a policy for a variety of reasons, not the least of which is that prohibiting parents from recording meetings sets a negative tone from the outset. In addition, a policy limiting recording seems archaic in an era where smart phones, tablets and other electronic devices are not only ubiquitous, but enable easy audio and/or video recording of meetings. Nevertheless, simply allowing recordings does not obviate the need for a policy. School personnel are often faced with questions such as these:
- When a parent records a PPT meeting, should the school also record the meeting?
- May (and should) school personnel use a personally owned smart phone or device to record the meeting?
- What must be done with the recordings of the meetings?
- May individual members of the team object to being video recorded in meetings?
- Do individuals who participate via telephone need to be advised that they are being recorded?
These questions implicate a number of legal obligations toward students, employees and third parties, including the confidentiality of, access to and maintenance of education records — the electronic monitoring of employees – and the privacy of telephonic communications. Recordings of PPT meetings are education records for the purpose of the Family Educational Rights and Privacy Act [“FERPA”]. Therefore, schools must maintain and protect such recordings in accordance with the law, which means that keeping the recording on a school social worker’s personal iPhone would be problematic. Additionally, electronically recording your employees at such meetings may require prior written notice. Finally, in Connecticut, the recording of a telephone conversation without the consent of a party to the communication gives rise to a private cause of action that include damages, costs and attorneys’ fees. Thus, if a parent or another member of the PPT were to participate in the PPT meeting by telephone, whoever sought to record the meeting – regardless of whether it was the district or a parent – would first need to obtain the consent of the individual who was participating telephonically.
The bottom line is that developing, publicizing and implementing a written policy regarding the recording of special education team meetings can help to:
- Ensure that the school district complies with various legal obligations when recording meetings;
- Get team meetings off to a good start by avoiding difficulties or delays caused by unexpected requests;
- Enable school personnel to respond to requests by parents and advocates to record meetings with consistency and competence.