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Case Notes, Educational Records and Subpoenas
11/1/2003
Carolyn Stone, Ed.D.
Saturday November 01, 2003
by: Carolyn Stone, Ed.D.

Section: Inside Insight


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You have been seeing Stephen off and on for the first three months of the school year. You have received a request from Stephen’s mother for copies of your case notes. Are you legally required to provide her with your case notes?

The Family Education Rights and Privacy Act (FERPA) is federal legislation governing educational records, and it dictates how all written information on a student will be handled for the protection of students and their families. Before FERPA, parents didn’t have the right to records, and abuses occurred. FERPA has enacted safeguards so parents can access their children’s educational records and have a voice in how they are made available to others.

However, not all information collected and maintained by schools and school employees about students is subject to the access and disclosure requirements under FERPA. One of the five categories exempt from the definition of “education records” under FERPA is records made by teachers, supervisors, school counselors, administrators and other school personnel that “are kept in the sole possession of the maker of the record and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.”

This means school counselors’ case notes are “sole possession records” and not educational records if the records are: 1) a memory aid, 2) not accessible or shared in either verbal or written form, 3) a private note created solely by the individual possessing it and 4) include only observations and professional opinions.

If case notes don’t meet the above criteria, then school counselors are legally required to provide them to the requesting parent. FERPA requirements mean school counselors must write case notes through a different lens, only recording observations and professional opinions. Think about the last student who came to you for a personal/emotional issue. Try to write a case note that doesn’t record details but rather just your professional opinion and your observations. Meeting the definition of sole possession records is tough to do.

School counselors do not usually keep prolific notes. Often case notes record the date, the student’s name and a few memory-jogging details. However, when you do write detailed case notes, for example in a child abuse situation, a student who is self-mutilating or suicidal students, write with the understanding that the notes can be subpoenaed (in most states) and parents can access the case notes if the notes record more than just observations and professional opinions. Therefore, take great care to write professionally, and once subpoenaed, be careful not to purge or rewrite notes. It’s acceptable to correct misspellings or other errors by crossing out the error so that it can still be read, correcting it and initialing the correction.

It’s hard to meet the criteria for sole possession records, but this doesn’t mean we should forgo writing case notes when it’s important or appropriate for students’ welfare. However, when writing case notes, constantly remind yourself that these notes can be read in a court of law and that parents can request them. Write down what you must remember about your student, but realize that it may, at some point, be read by others. Even when school counselors manage to meet the criteria of sole possession records, these records can still be subpoenaed in most states.

Dealing with Subpoenas
If you do receive a subpoena for a student’s records, your first step should be to seek advice from your school district’s legal counsel and attempt to get a motion to quash, which is a procedure voiding your obligation to respond to a subpoena. Generally speaking, you don’t want your records or testimony in court. School counselors’ loyalty is to students and the confidentiality we owe them. If you are unsuccessful in getting the motion to quash, advocate for the privacy of your students in other ways, such as asking the judge to excuse your testimony or to take your notes into chambers to determine if the notes are really needed. Advocate to protect your case notes and to be excused from testifying.

Granted, there are times, such as in a child abuse situation, you’ll want to testify and share your records. By all means, do so, but exercise caution before entering the legal arena on behalf of students. School counselors are often asked to endorse one parent over another in custody battles. This can be a sticky situation. Even if you think you know the whole story and have a definite opinion about which parent would be the better guardian, it’s difficult to truly know if you’re right. Could there be more to the story than we are able to learn from the student, teacher and from our own interactions with the parents? Absolutely.

Some of the most heart-wrenching calls I have received as ASCA ethics chair are from parents involved in heated custody battles who felt wronged because their child’s school counselor sided with the other parent in the form of a letter or testimony.

We will continue to enter the legal arena as our judgment dictates, but a sobering dose of caution may help us re-evaluate some of our involvement. Obviously, school counselors want to protect students’ privacy to the extent possible. However, if all attempts fail to avoid relinquishing your records or your testimony, then cooperate fully.

Carolyn Stone, Ed.D. is a professor and school counseling program leader, University of North Florida, and chair of ASCA’s Ethics Committee. She can be reached at cstone@unf.edu.