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.

3 thoughts on “Recording IEP Meetings

  1. Quick question. I am in MA and attended an IEP mtg which we and the SD recorded due to one of the parents not being able to attend and hearing accessibility of the advocate. The SD stated a disclosure of the recording not being permitted for legal purposes. Is this legal?

    Also, when the advocate requested the mtg notes, the SD chair stated on the recording that she didn’t take any notes due to the recording. Therefore, can the recording now be used as evidence if we go to a hearing since we were not given written notes of the mtg? Or perhaps the transcription of the recording be used as the meeting notes in a hearing?

    Thank you in advance.

    • Thanks for your comment. The student record is defined as follows in 603 CMR 23.03:

      “The student record shall consist of the transcript and the temporary record, including all information recording and computer tapes, microfilm, microfiche, or any other materials regardless of physical form or characteristics concerning a student that is organized on the basis of the student’s name or in a way that such student may be individually identified, and that is kept by the public schools of the Commonwealth. The term as used in 603 CMR 23.00 shall mean all such information and materials regardless of where they are located, except for the information and materials specifically exempted by 603 CMR 23.04.”

      In our view, a recording of a Team meeting – regardless of format – is part of the student record. Upon parental request, the student record must be provided (and therefore cannot be withheld) pursuant to 603 CMR 23.07. To avoid potential access issues, we advise parents to make their own recording in addition to whatever recording the district may create. Once the recording is in your possession, you are likely able to disclose it as you see fit. During a hearing, admission of the recording would be subject to the hearing officer’s discretion, just like any other piece of evidence.

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