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Catrone v. Miles - 6/26/2007

Arizona Court of Appeals Division One Holds That Special Education Records Are Not Protected in Their Entirety by the Medical Records Privilege and Not Protected by an Educational Records or a Special Educational Records Privilege and Must Be Produced if Production Interest “Substantially Outweighs” Confidentiality Interest.

Andrew and Stephanie Catrone’s son Patrick experienced health difficulties almost immediately after birth. As a result, Patrick suffered severe and permanent injuries, including impaired cognitive functions, neurobehavorial problems and sensory motor deficits. The Catrones alleged these injuries were caused by negligent medical care and treatment, and sued the hospital and medical professionals who provided care to Patrick.

The defendants sought the special education records for Patrick’s brother Austin to support their theory that Patrick’s impairments were genetic. After the court ordered production of Austin’s redacted special education records, the Catrones filed this special action. The Court accepted special action jurisdiction, noting the issues of first impression and that an appeal would offer no adequate remedy to the prior disclosure of privileged information.

The Court of Appeals affirmed the trial court’s order. Observing that the medical records privilege statute, A.R.S. § 12-2292, protects from disclosure communications “related to physical or mental health” maintained for “purposes of patient diagnosis or treatment,” the court held that special education records, with few exceptions, are not privileged medical records. Though related to the student’s physical or mental health, special education records are maintained for the purposes of developing an education plan, not for diagnosis or treatment.

The Court rejected the Catrones second argument that the records are protected from disclosure by a special education “privileges” created by state and federal statute. After reviewing the relevant state and federal statutes – A.R.S. § 15-541, the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and the Disabilities Education Act, 20 U.S.C. §§ 1401-1482 – the Court joining other jurisdictions in concluding that although these statutes may create certain confidentiality rights, they do not create an independent privilege for educational records,.

But because these statutes do create an expectation of privacy in the records, the Court also held that confidentiality is a factor to be considered in their discoverability. After applying the traditional relevance standard for discoverability, a court must then determine whether the statutory interest in confidentiality “substantially outweighs” the interest in production, considering a number of specified factors. Applying this test, the Court upheld the production order.

Opinion authored by Judge Barker, with Presiding Judge Norris and Judge Thompson concurring.

Posted On: 6/28/2007