Privacy

Access to child records

The new privacy regulations aren’t solely related to the disclosure of information by the program; they also require programs to ensure that a parent can access his or her child’s records.  As we noted in Part 1 of this blog series, child records are “records that (1) [a]re directly related to the child; (2) [a]re maintained by the program, or by a party acting for the program; and (3) [i]nclude information recorded in any way, such as print, electronic, or digital means, including media, video, image or audio formats.”  45 C.F.R. § 1305.2.

Once a parent makes a request to inspect and review a child’s records, the program must make the records available within 45 days.  This may seem like a lot of time, but we advise programs to start the process early.  There are several steps that a program should take before granting access to a parent, including:

• A program official should determine whether the adult who has requested access meets the definition of “parent” and should confirm that there are no judicial orders (including protective orders in domestic violence situations) that limit the parent’s right to access child records.
• A program official should collect child records, keeping in mind that, in addition to your electronic child files, you may find additional child records with the child’s teacher or with other school officials who provide services to the child.
• Once the child’s record is compiled, a program official should review the record to ensure that the information relates only to the child of the parent who has requested access. Information related to any other child in the program must be redacted from the child’s record.

Correction of child records

A parent also has the right to request that the program correct or delete information that is inaccurate, misleading or that violates the child’s privacy.  Parents may request correction or deletion of information for a variety of reasons.  Perhaps a parent disagrees with comments a teacher has made about a child’s behavior.  In another example, a parent may request that a child’s HIV status be removed from child records.

Whatever the parent’s reason, the program must consider the parent’s request and make a formal decision about whether to correct or remove information in accordance with the parent’s wishes.  We recommend that the program thoroughly document its consideration of the parent’s request.  The program should generate a memorandum describing the parent’s request, the relevant facts, the program’s decision and the rationale for the decision.

If the program does not agree to correct or remove information, the parent has a right to a hearing.  The hearing officer may be a school official as long as the official is not interested in the outcome of the hearing.  For example, if a parent requested that a teacher’s comments be removed from the child’s records, it would be inappropriate to have the teacher serve as the hearing officer.  Likewise, the program official who made the initial determination to deny the parent’s request should also be disqualified from serving as a hearing officer.

A program should maintain a record of the hearing, including any written statements and oral testimony.  The hearing officer should issue a timely, written decision that describes the hearing process, states the relevant facts as determined by the hearing officer, and includes the rationale for the hearing officer’s decision.

If the hearing officer denied the parent’s request to correct or delete certain information from a child’s records, the parent has the right to place an explanatory statement with the child’s records.  Whenever the disputed portion of the child’s records is disclosed, the explanatory statement must accompany the records.