Having an audio recording of what happens in an IEP meeting is powerful evidence, especially when school districts deny what was said or fail to put a service in writing into the IEP. For example, an audio recording can prove or disprove what was actually discussed during the meeting, whether the parents were given proper opportunity to participate, and what decisions or objections were made. For those reasons, parents often wonder if they are permitted to record an IEP meeting.
So, can you do it?
There is no federal law prohibiting a parent or school official from recording IEP meetings. IDEA and the other special education laws are silent on that specific issue.
However, IDEA does say a few things that are relevant to the discussion:
- Parents are critical members of the IEP team
- Parental participation in IEP meetings is vital and if a school blocks such participation, it is a denial of FAPE
- Parents have the legal right to understand the IEP and, if necessary, have it explained to them
Audio recording an IEP Meeting, when the IEP Team is aware and consents to it, is not a violation of federal privacy law.
So that means you can do it, right? Not so fast.
The U.S. Department of Education (USDOE) Office of Special Education Programs (OSEP) has issued a letter opinion and Policy Memorandum on this subject in June 4, 2003 (PDF file). The bottom line of the analysis is that it is a local policy issue and depends on several factors.
When a federal law is silent on an issue, the individual states can decide or legislate on the issue.
State Privacy Laws
The next hurdle to overcome is what state law says on privacy and audio recordings. Each state has its own laws regarding the consent required to audio record events, even if they are ‘public’ events.
Some states are known as ‘dual consent’, which means both parties must know about and agree to the recording. Some states are ‘single consent’ which means that only one of the interested parties (usually the parent who wishes to record the IEP meeting) has to agree to it.
While not exhaustive of every state’s law, the Digital Media Law Project collected links to some state’s laws on this issue. This site is not being kept up to date, so make sure you check your own state’s law on recording or consult with a local attorney.
School District Policies
It is therefore left to the State Educational Agency (SEA) or Local Educational Agency (LEA) to determine the policy on audio recording these sessions.
The SEA or LEA (local school district) may issue a policy requiring, prohibiting, limiting or in any other way regulating audio recording of IEP Meetings. If the public agency has a policy that prohibits or limits the use of recording devices at IEP meetings, the policy must have exceptions necessary to protect parental rights, such as the ability to understand the IEP or the IEP process. Any such policy on tape recording IEP meetings must be uniformly applied.
Protecting Access to Recordings
Any recording of an IEP meeting maintained by a public agency is an “education record,” within the meaning of the Family Educational Rights and Privacy Act (FERPA) and would be obtainable by the parents through a written request. It would also be subject to the protections of FERPA prohibiting its release to anyone not authorized under that law.
So what do you do?
Parents wishing to use audio or video recording devices at IEP meetings should consult state laws or local school policies for further guidance or consult with a local education attorney.