Recording IEP Meetings

Neither federal law nor Massachusetts state law address the question of whether parents and/or legal guardians may be able to record IEP meetings. However, the Office of School Education Programs (“OSEP”) (which is part of the U.S. Department of Education) has issued some guidance on this issue.

OSEP has stated that because federal statutes do not explicitly authorize or prohibit the recording of an IEP by a parent/guardian or school personnel, the state educational agency or other public agency has the option to “require, prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings.”

OSEP also provides certain protections to parents/guardians who wish to record IEP meetings:

If a public agency has a policy that prohibits or limits the use of recording devices at IEP meetings, that policy must provide for exceptions if they are necessary to ensure that the parent understands the IEP or the IEP process or to implement other parental rights guaranteed under the [Individuals with Disabilities Education Act]. A SEA [state education agency] or school district that adopts a rule regulating the tape recording of IEP meetings also should ensure that it is uniformly applied.

Thus, states and their respective school districts are allowed to create policies regarding the use of audio or video recording devices at IEP Team meetings. However, such policies cannot undercut the rights afforded to parents/legal guardians throughout the IEP process. For example, federal and state laws ensure that one or both parents/legal guardians of a student are members of the IEP Team, (which is, pursuant to both state and federal law, the group of people that make decisions about the student’s educational programming and placement).  Additionally, state and federal law require school districts to ensure that the parents/legal guardians understand the proceedings of the IEP Team meeting. As such, if the parents/legal guardians need to record IEP Team meetings in order to fully understand and participate in the IEP Team meeting process, they can request to record the meeting even if the school district has a policy against such recording. Additionally, the school districts’ policies regarding recording IEP meetings must be applied uniformly to all parents/legal guardians in the district.

It is critical to note that Massachusetts’ wiretapping law is a “two-party consent” law, which makes it a crime to record a conversation secretly.  This applies to conversations over the phone or in person and it also applies to video recording where audio is captured.  Therefore, surreptitiously recording a meeting is inadvisable.  Instead, parents should have an open discussion with the district and document any objections or disagreements in writing.

School districts are not necessarily required to comply with the parents’/legal guardians’ requests to record IEP meetings, but it is important to note that parents and legal guardians retain certain rights that may allow them to record a meeting.

Nathan Y. Sullivan is an associate in the Special Education and Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

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