M E M O R A N D U M

DATE:
May 24, 2004
TO:
Directors of Special Education
Other Interested Parties

FROM:
Amy L. Roberts, Director
Division of Compliance and Assistance

SUBJECT:
Test Protocols: Access and Retention

In response to recent questions from the public, this memorandum clarifies whether parents, or their representative, can access test protocols. This determination needs to be made on a case-by-case basis, depending on whether the student’s answers are separable from the test protocol itself.

Educational Data
The first step is to determine what is educational data. According to the Family Educational Rights and Privacy Act (FERPA), the term “education records” is broadly defined as data directly related to a student that is maintained by an educational agency or institution or by a party acting for the agency or institution. 34 C.F.R. § 99.3. For purposes of special education, access to these records is governed by 34 C.F.R. § 300.562, which incorporates FERPA, and states:

(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP, or any hearing pursuant to §§300.507 and 300.521-300.528, and in no case more than 45 days after the request has been made.
(b) The right to inspect and review education records under this section includes—
(1) The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records;
(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and
(3) The right to have a representative of the parent inspect and review the records.

(c) An agency may presume that the parent has authority to inspect and review records relating to his or her child unless the agency has been advised that the parent does not have the authority under applicable State law governing such matters as guardianship, separation, and divorce.

Therefore, a district must permit parents of a student with a disability to inspect and review educational records about their child. A district must respond to such a request within ten business
days and must comply with the request before an IEP team meeting or due process hearing is held and within 45 calendar days.

Test Protocols as Educational Data
The second step in the determination is whether the test protocols contain educational data and to what extent before releasing them to the parents. The Family Policy Compliance Office (FPCO), the federal office responsible for implementation of FERPA, determined in Letter to Thomas that test protocols, as educational data, may be accessible to the parents under the following conditions:

1. If the test questions and answers are both personally identifiable to the student (that is, if the answers appear on the same sheet as the questions, and are identified by the student’s name), the parents have a right to inspect both the questions and answers.

2. If the questions are separate from the answers, and only the answers are personally identifiable to the student, the parent has the right of access to the answers only. However, since 34 C.F.R. § 99.10 also requires an agency to respond to a reasonable request for explanation or interpretation of the record, the agency would have to inform the parent of the questions, if so requested, in order to explain the answers to the questions.
See Letter to Thomas, 211 IDELR 240 (FPCO 1986).

“Accordingly, if a school were to maintain a copy of a student’s test answer sheet (an ‘education record’), the parent would have a right under Part B [of IDEA] and FERPA to request an explanation and interpretation of the record. The explanation and interpretation by the school district could entail showing the parent the test question booklet, reading the questions to the parent, or providing an interpretation for the responses in some other adequate manner that would inform the parent.” 34 C.F.R. § 300.562 (discussion).

Providing Copies of Test Protocols and Educational Data
The district is not unequivocally obliged to distribute copies of test protocols containing educational data to the parents unless failure to do so would effectively prevent the parents from exercising their right to inspect and review. 34 C.F.R. § 300.562(b)(2). In other words, if parents are physically unable to inspect and review the educational data about their child, the district must provide copies of the data to them. The U.S. Department of Education has interpreted this to mean that a parent shall receive copies of the records when he or she lives too far from the school district to see the records in person. Letter to Anonymous, 213 IDELR 188 (OSERS 1989) and Letter to Kincaid, 213 IDELR 271 (OSERS 1989). The parent also might be prevented from exercising the right to inspect and review for other reasons, such as a disability, lack of transportation, etc. Representatives from the district may use their own judgment regarding whether a parent is effectively denied access, but should take the above examples into consideration when making this determination.

Federal Copyright Implications
If a district is concerned about the implications of federal copyright laws , it should take into

consideration the fair use doctrine:

Sec. 107. - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

In Letter to Thomas, the FPCO determined that “an educational agency or institution makes fair use of copyrighted material when the agency or institution provides a copy of test questions and a student’s answers to those questions to the parents of the students.” 211 IDELR 420 (FPCO 1986). However, to reduce the risk of test security violations, the FPCO also counseled: “[Districts] may wish to mark the documents with appropriate language informing the party to whom it is released that the test instrument is copyrighted.” Even though this approach will not alleviate all test security concerns, a district must balance those concerns with a parent’s right, guaranteed by federal law, to inspect and review his or her child’s educational data.

Rights of a Parent Representative
The IDEA regulations diverge from FERPA by allowing a parent representative access to inspect and review special education data on behalf of the parent; however, nothing in FERPA, IDEA or its implementing regulations allows a parent representative to obtain copies of the child’s educational data directly from the district, even if the district has parental consent. See 34 C.F.R. § 300.562(b)(3) and 34 C.F.R. § 99.10(d).

Nothing in that EHA-B provision gives a parent representative the right to obtain a copy of an education record of a student, even if failure to provide the copy would effectively prevent the representative from inspecting and reviewing the record. Therefore, while a school district is not required to give copies of education records to a parent representative, a parent could obtain copies of records, if he or she has a right to them, and provide them, in turn, to a representative.
Letter to Longest, 213 IDELR 173 (OSEP 1988).

Enforcement
Any complaints regarding enforcement of these laws may be brought to the attention of the following agencies:

? The Minnesota Department of Education, Division of Special Education Compliance and Assistance, for any special education complaints regarding enforcement of 34 C.F.R. §
300.562 (incorporating FERPA).

Minnesota Department of Education
Division of Special Education Compliance and Assistance
1500 Highway 36 West
Roseville, MN 55113
Telephone: 651.582.8689
Fax: 651.582.8725

? The U.S. Department of Education, Family and Compliance Office, for any complaints regarding enforcement of the Family Educational Rights and Privacy Act, through the complaint procedures found at 34 C.F.R. §§ 99.63-99.67.

U.S. Department of Education
Family and Compliance Office
400 Maryland Avenue Southwest
Washington, D.C. 20202-5901

? The Department of Administration, Information and Policy and Analysis Division, for any complaints regarding compliance with the Minnesota Government Data Practices Act (Chapter 13 of Minnesota Statutes).

Minnesota Department of Administration
Information and Policy Analysis Division
201 Administration Building, 50 Sherburne Avenue
St. Paul, MN 55155
Telephone: 651.296.6733 or 800.657.3721
Fax: 651.205.4219
E-mail: info.ipad@state.mn.us