Records may have been prematurely destroyed

When mother Ruth Bowman asked Darien Schools for her son’s school records, she claims it was three years before she got anything back.

“I have requested detailed records of my youngest child since he was in second grade,” she said, adding that her son is a rising fifth grader this year. “I never got anything until this past spring.”

Bowman’s child receives general education services — he is not in a special education program. She said she told the schools she was considering placing her child in private school or home schooling him, which is why, she believed, her request was inadequately fulfilled after a long wait period.

“When I completed the form for requesting the records, I specifically explained that I wanted everything in his file,” she said. She also claimed she was told that she “was not entitled” to have a copy of her son’s entire file.

“So, [the secretary] said she would pull what she thought would be beneficial,” said Bowman, which is not her real name, as she requested her name be kept private to protect her child. “Again, I received very little and nothing like what I know has to be in there.”

Broken records?

The issue of records retention comes at a pivotal time for the schools, as it is about to undertake an unprecedented and self-imposed investigation into special education practices. Sue Gamm, a Chicago lawyer and special ed professional with 40 years of experience, has been hired to dissect the schools’ programs to see if the schools were illegally changing the education plans of children with disabilities.

An investigation by this newspaper into the schools’ record-keeping processes has uncovered what could be a directive by a top school administrator to prematurely destroy records for students with special needs.

Internal school emails obtained via a Freedom of Information request revealed a conversation between a special education teacher and two top special ed administrators — Liz Wesolowski and Deirdre Osypuk.

The teacher asks Wesolowski, assistant director of elementary special education, about keeping certain records.

“Should I keep work samples, protocols, and my actual data sheets from previous students,” the teacher asks.

Wesolowksi then forwards the inquiry to Osypuk, special education director, asking, “Didn’t we say a year’s time is appropriate and then to shred?”

Osypuk responds, saying, “Test protocols I suggest we keep until the student leaves the building. All the other stuff can be shredded immediately.”

While the federal government considers test protocols as copyrighted materials that are therefore exempt from public disclosure, it’s unclear whether “work samples” and “data sheets from previous students” could be considered “education records”.

The Family Educational Rights and Privacy Act, or FERPA, defines “education records” as “those records that directly relate to a student that are maintained by an educational agency or institution or by a party acting for the agency or institution,” according to the state Department of Education.

Under FERPA, parents are supposed to be notified whenever certain education records are slated for destruction. This is the case if the record includes, among other criteria, personally identifiable information, which is protected from disclosure in most instances under federal privacy laws.

Nowhere in the email chain does Osypuk or Wesolowski mention the need to notify parents if an education record is slated for destruction. It’s still unclear if the teacher was discussing protected education records in her inquiry. Some parents said data sheets for individual students were clearly education records that should have required parental notification.

The state also requires most special education documents be kept for at least six years after a student leaves the district before the records are eligible for destruction.

Andrew Feinstein, a lawyer who has represented parents throughout the special education crisis, said the problem is rooted in a lack of best practices.

“Darien needs clear rules,” Feinstein said. “And, Dr. Osypuk’s cavalier shredding is unacceptable, albeit not clearly illegal.”

Evidence gone?

If education records were destroyed, some parents fear that these records could have been additional evidence of illegal activity.

Illegally destroying, mutilating or disposing of protected public records is a class A misdemeanor, punishable by up to one year in prison and a $2,000 fine. Unlawful removal of a record is a felony, with harsher penalties.

Darien Schools does not have its own records retention policy. Board of Education policy puts record-keeping in the superintendent’s hands, which she or he can then delegate if desired. The custodian of records has been Dick Huot, the finance director who is retiring this year, according to Connecticut State Library’s Office of Public Records Administration.

Steve Falcone, superintendent of schools, told this newspaper that Darien uses the state’s record retention policy to guide its record-keeping. The Office of Public Records Administration maintains that guideline.

In almost every record category under the special education section in the state’s guidelines, permission from the state is needed prior to a record’s destruction. The only documents that do not require state notification and approval are test protocols.

Test protocols are kept at the discretion of the administration. Osypuk suggested keeping these until the student leaves the building, yet suggests that all “the other stuff can be shredded immediately,” with no mention of state approval or parent notification, as state and federal law require in many instances.

Falcone was on vacation this week, but emailed The Times saying he would need “to review our practice” when he returned.

He also said that “things like work samples are not generally education records,” but did not mention data sheets.

It’s unclear if the documents mentioned by the teacher were transitory in nature and did not require state or parent notification.

This year, the schools destroyed approximately 20 cubic feet of documents — mostly related to special education — with state approval, according to a records disposition authorization document obtained by The Times.

While Darien does not have its own records retention policy, other districts use the state’s policy as a guideline to develop their own, which they provide openly for the public. New Canaan’s Board of Education has a draft policy in place that references the state, but also notes the schools “may choose to retain selected education records for longer periods than that defined.”

Wilton Schools provided The Times with a comprehensive records retention policy that defined various records and how each relates to the law. State rules require most special education records be kept for at least six years after a child leaves the school district.

The only mention of record-keeping on the schools’ website is in the Parent & Student Policy Handbook, which summarizes parents’ rights under FERPA. It does not mention how records are maintained or what records are kept and for how long and where they are kept. No link to the state’s retention policy — which is what Darien uses — could be found on the schools’ website.

Parent concerns

Kit Savage, a parent and state petitioner, told The Times that she did not get all records when she issued a FERPA request to the schools.

“I was surprised to discover a long email between [Ox Ridge] Principal Luke Forshaw and Dr. Osypuk about my children’s IEPs when reviewing FOI documents that had not been provided to me in my FERPA request,” Savage said.

Individualized Education Plans, or IEPs, are developed for each child who is eligible for special education. Developing an IEP is a process that involves parents and various education professionals.

Parent and petitioner Molly Van Wagenen also said her FERPA request was inadequate, but added she didn’t think it was intentional.

“I do not think that Darien has purposefully had a bad record retention policy,” Van Wagenen said, “but until now the need for a good system has not been highlighted to a degree larger than an individual family’s problems accessing records.”

Other parents said they compared what the schools gave them in response to a FERPA request with education records they had received in the past, and noted discrepancies.

They had the actual records from the past, but these records were no longer in their children’s files, they claimed.

Attorney Feinstein noted that these stories iterate the need for the district to employ best practices, and not simply follow the state. The state does not offer advice on how to keep documents, and it appears that Darien does not have a central location for student records.

“I think that, in a data-based education system, which Darien claims — and with the requirements of SRBI — retention of tests, quizzes, papers, and other classwork is essential to have any credibility,” Feinstein said.

Scientific Research-Based Interventions, or SRBI, is used by the district to intervene when a student falls behind in class. It is aimed at catching students earlier to prevent more intensive services, but the district does not keep complete records on the outcomes of the program.

Bowman, the mother of a child in general education, said anytime she asked questions about her son’s schooling she received vague answers.

“As a parent, you feel they are either hiding info or they don’t know what they are talking about,” she said.

Vickie Riccardo, a mother and member of the Environmental Protection Commission, told The Times that the schools had told her there was nothing wrong with her child, but she later found out through a private evaluation that her daughter had dyslexia.

“She’s a very smart person,” Riccardo said. “She found ways of compensating.”

She and her husband placed her daughter in a private school, where she thrived, Riccardo said, adding that they paid for it themselves and did not try to get the district to foot the bill. Her daughter is now heading to college.

“It worked out for her,” she said. “I can’t say what would have happened to her had she stayed in the public system.”

Originally published in The Darien Times.

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