Law enforcement records may be withheld from disclosure under the Public Records Act to the extent that they would disclose confidential techniques and procedures for law enforcement investigations or prosecutions. AS 40.25.120(6)(E), or would disclose guidelines for law enforcement investigation or prosecution if the disclosure could reasonably be expected to risk circumvention of the law. AS 40.25.120(6)(F).
Wiretapping activity cannot be revealed except to specific public officials involved in the investigation. A.R.S. § 13-3011.
Unless the technique or manual fits into the “open investigation” exception, the Attorney General has opined that it is subject to disclosure. Ark. Op. Att’y Gen. No. 85-134. Furthermore, any training manuals located in a police officer’s personnel file is subject to the FOIA. Ark. Op. Att’y Gen. No. 2008-046.
Sections of the Department of Correction’s procedures dealing with emergency situations are exempt from the FOIA. Ark. Code Ann. § 12-27-137(a).
Exempt. Police techniques or “security procedures” are expressly exempt from disclosure under Section 6254(f).
Records of security procedures may be withheld under Colo. Rev. Stat. § 24-72-305(5) if disclosure would be contrary to the public interest.
The D.C. Act does not specifically address police techniques, although § 2-534(a)(3) may apply. Recently, the District attempted to justify withholding documents concerning the police department's use of breathalyzer tests under the investigatory-records exemption. The D.C. Court of Appeals explained that withholding would be appropriate only if "(1) the documents requested . . . [were] compiled for law enforcement purposes, and (2) disclosure of those documents would interfere with enforcement proceedings." Fraternal Order of Police, Metro. Labor Committee v. D.C., 82 A.3d 803, 815 (D.C. 2014).
O.C.G.A. § 50-18-72(a)(3) exempts from disclosure law enforcement records that if revealed would be reasonably likely to disclose the identity of a confidential source, confidential investigative or prosecution material which would endanger the life or physical safety of any person or persons, or the existence of a confidential surveillance or investigation.
Information in an investigatory record compiled for law enforcement that would disclose investigative techniques and procedures is exempt from disclosure. Idaho Code § 74-124(1)(e).
Only specialized investigative techniques which would result in demonstrable harm to the public body that is the recipient of the request are exempt. 5 ILCS 140/7(1)(d)(v). Generic police techniques are open. Id; Public Access Opinion 11-002 (available at http://foia.ilattorneygeneral.net/pdf/opinions/2011/11-002.pdf) (number of police officers assigned to districts is subject to disclosure).
There is no statutory or case law addressing this issue, except the general exception under Indiana Code Section 5-14-3-4(b)(1)for law enforcement investigatory records, which may be released at the agency’s discretion. Criminal intelligence information is confidential under Indiana Code Section 5-2-4-6.
Mentioned at K.S.A. 45-221(a)(10)(D). The presumption is that they are closed as part of a criminal investigation.
Generally open. See Ky. Rev. Stat. 61.878(1)(h).
Exempt. La. Rev. Stat. Ann. § 44:3(A)(3). But a general assertion that certain documents reveal investigative techniques is insufficient to justify the privilege. The law enforcement agency must produce evidence to substantiate the claim of privilege and the party seeking discovery of the records must be afforded meaningful cross-examination to allow the discovering party to contradict the assertion of the privilege. Freeman v. Guaranty Broad. Corp., 498 So. 2d 218 (La. App. 1st Cir. 1986).
In general “investigative techniques and procedures or security plans and procedures not generally known by the general public” are confidential. 16 M.R.S.A. § 804(7).
A custodian may deny access of investigatory records to a person in interest if, among other things, the disclosure would disclose an investigative technique. § 4-351(b)(5). Inspection of records by a notary public or any other person in interest may be denied if, among other things, the inspection could disclose an investigative technique or procedure. § 4-332(d)(5).
Confidential informants are private criminal justice information and not available for public dissemination. However, any allegation that an officer violated the public trust in carrying out some technique is not “private” information and may be disclosed. See Great Falls Tribune v. Cascade County Sheriff, 238 Mont. 103, 775 P.2d 1267 (1989); Citizens to Recall Whitlock v. Whitlock, 255 Mont. 517, 844 P.2d 74 (1992); Bozeman Daily Chronicle v. City of Bozeman Police Dept., 260 Mont. 218, 859 P.2d 435 (1993). In each of cases, the court found that the individual officer, public employee or elected official has very little expectation of privacy, and the public has a fundamental right to know what public employees are doing.
There is no law on point.
Gilleran v. Township of Bloomfield 227 N.J. 159 (2016) - Supreme Court of New Jersey determined that security camera footage of municipal parking lot was exempt from access under OPRA due to the two security exemptions in OPRA.
Police techniques are typically confidential information and thus not available to the public. NMSA 1978 § 14-2-1(A)(4); § 29-10-4.
Police techniques are not specifically addressed by statute but likely could be withheld as criminal intelligence or criminal investigative records. G.S. § 132-1.4(b).
Generally closed. See N.D.C.C. § 44-04-18.7.
Specific confidential investigatory techniques or procedures are explicitly exempted from disclosure. Ohio Rev. Code §§ 149.43(A)(1)(h), 149.43(A)(2)(c).
Audio and video recordings of an arrest made by a law enforcement agency are a public record under the Act. Ward & Lee, P.L.C. v. City of Claremore, 2014 OK CIV APP 1.
Information compiled in investigations not connected with pending or contemplated prosecution may remain confidential if it would disclose investigative techniques and procedures. See Jensen v. Schiffman, 24 Or. App. 11, 544 P.2d 1048 (1976); Attorney General Manual § I(E)(4)(d).
Law enforcement agency investigative records which could reasonably be expected to disclose the identity of a confidential source are exempt from disclosure. R.I. Gen. Laws § 38-2-2(4)(D)(d).
Closed, presumably. SDCL §§1-27-1.5 (5) and (8).
Internal law enforcement detection and investigation methods are generally exempt under Section 552.108. In Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977), the Texas Supreme Court held that the Act excepts law enforcement information if release “will unduly interfere with law enforcement and crime prevention.” In Tex. Att’y Gen. ORD-531 (1989), the Attorney General advised that detailed portions of a police department’s “use of force” procedures are excepted from disclosure under the Act because it “is reasonable to conclude that knowledge of these detailed guidelines would place an individual at an advantage in confrontations with police officers and would increase his chances of evading arrest or injuring the officer or other persons.” However, other portions of the procedures that only restate generally known common law, constitutional, or Penal Code provisions are public.
Records that reasonably could be expected to disclose investigative techniques that are not generally known outside of government are protected from public disclosure. Utah Code § 63G-2-305(10)(e).
Records dealing with the detection and investigation of crime are exempt from disclosure, including records that “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecution if such disclosure could reasonably be expected to risk circumvention of the law.” 1 V.S.A. § 317(c)(5)(a)(v).
Specific tactical plans, if their release would jeopardize law enforcement personnel or public safety, and staffing, logistics, or tactical plans of undercover operations or protective details are subject to exclusion and to discretionary release. This does not permit the withholding of information concerning the overall costs of operations. Va. Code. Ann. § 2.2-3706.B.5 and 8.
Investigative records that disclose police techniques may be withheld if nondisclosure is necessary for effective law enforcement. RCW 42.56.240(1). The state Supreme Court has held that records of internal police investigations are public, but the names of complaining persons and law enforcement officers who are the subject of complaints may be withheld. Cowles Publ'g Co. v. Washington State Patrol, 109 Wn.2d 712, 748 P.2d 597 (1988) (finding, on the facts of the case, that nondisclosure is necessary for effective law enforcement).
No Wyoming cases have discussed this issue.


(1) Host Europe GmbH, Hansestr. 111, 51149 Cologne (hereinafter referred to as the “Provider”) shall deliver for the brand HOST EUROPE its services exclusively on the basis of these general terms and conditions of business. These general terms and conditions of business shall also apply to future agreements concluded between the parties relating to the areas of hosting and domains, even without any further explicit reference thereto.
(2) We shall not recognise terms and conditions of the Client that deviate from our own, unless we had expressly agreed thereto in writing. Our general terms and conditions of business shall apply even when we unconditionally supply goods and services to the Client while being aware that the Client’s general terms and conditions contradict our terms or are different therefrom.
(1) The obligations of the Provider are outlined in the service specification for the respective product. Other assurances, service commitments or supplementary agreements shall only become effective when they are confirmed in writing by the Provider.
(2) The Provider shall be entitled to expand the scope of his services, adapt and/or improve them to keep pace with technical progress. This shall apply in particular where the adaptation appears to be necessary in order to prevent misuse or if the Provider is required to adapt his services in order to comply with statutory regulations.
(3) Should the Provider deliver additional services without charging an additional fee, the Client shall have no right to claim performance. The Provider shall, within a reasonable period, be entitled to discontinue such services previously made available free of charge, to amend such services or to only offer such services against payment. In such cases the Provider shall inform the Client in good time thereof.
(4) The Provider shall only be under obligation to provide the Client with technical support in line with the contractually agreed services. Over and above this the Provider shall not provide the Client with any support services free of charge. The Provider shall not provide direct support for the Client’s customers unless otherwise agreed in writing.
(5) Where the Client has been provided with fixed IP addresses the Provider reserves the right to change the IP address(es) allocated to the Client, should this become necessary for technical or legal reasons. The Client is not entitled to a particular server unless expressly assured in writing. The Client is aware that it may be necessary in the normal course of business to migrate him to another server without prior approval. The Provider will inform the Client about such changes according to this clause no. 5.
(1) The Client shall ensure that the information he provides is correct and complete. He undertakes to immediately inform the Provider of any and each change to the contact details he has given, and of any other data that is necessary for fulfilling the contract. The Client confirms that he is at least 18 years old and able to enter into contracts according to the applicable laws.
(2) The Client shall, on a daily basis, make/have made backup copies of all data he transfers to the Provider’s server and that may not actually be stored on the server, in order to ensure the rapid and cost-effective recovery of the data in the event of a system failure. In the event of the loss of data the Client shall re-upload the affected data files to the Provider’s server and restore the configurations free of charge.
(3) The Client may not infringe statutory prohibitions, moral standards or the rights of third parties (copyright law, trademark law, rights to the name and data protection law etc.) through his use of his website or the banners that appear on the website. The Client may not enter its website details into search engines when making such entries, if and insofar as the Client infringes statutory prohibitions, moral standards or the rights of third parties through his use of keywords and similar technologies. In the event of any infringement of one of the aforementioned obligations, the Provider shall be entitled to suspend the provision of his services with immediate effect or to block access to the Client’s information.
(4) The Client undertakes to regularly change the passwords received from the Provider for the purpose of accessing his services and to keep them strictly confidential. The Client shall immediately inform the Provider as soon as he becomes aware that the password has become known to unauthorised third parties.
(5) When designing his website the Client undertakes not to use technologies that place excessive stress on the Provider’s installations. The Provider shall be entitled to block websites that use such technologies so they cannot be accessed by third parties, until such time as the Client has removed/deactivated these technologies. This shall not apply where Clients have sole use of entire servers (dedicated hardware).
(e) The falsification of IP addresses, mail and news headers or the dissemination of malicious software. In the event that the Client infringes one or more of the aforementioned obligations, the Provider shall be entitled to suspend the provision of all services with immediate effect. We expressly reserve the right to assert claims for damages.
(7) Where the transmission of a certain volume of data during an invoicing period has been agreed with the Client, the Client shall monitor this limit. Should the volume of data transferred (traffic) exceed the upper limit agreed with the Client for the respective time period the Provider shall invoice the Client for the corresponding amount for the excessive data traffic at the prices agreed therefor.
(8) Where the Client independently administers, installs or distributes the licences installed on the servers, he undertakes to only ensure correct licensing.
(2) Unless otherwise agreed, the minimum contract term shall be 12 months and the period of notice for ordinary termination of the contract shall be six weeks to the end of the contract term. Unless agreed to the contrary and in the event that no notice of termination is given, the contract shall be automatically extended by the minimum contract term. However, if this is longer than one year the extension shall only be for one year.
(b) In the event that the Client negligently violates a material contractual obligation and does not remedy the situation within a reasonable period of time.
(4) Notice of termination shall be made in writing in order to become effective. You may also give notice of termination by e-mail provided this complies with the electronic form requirements pursuant to § 126 (a) BGB (German Civil Code) (the so-called qualified electronic signature). Where the Provider makes a corresponding termination function available, the contract can also be effectively terminated from within the Customer Information System (CIS). Notwithstanding the previous regulations, consumers (acc. to §13 BGB) can always give notice of termination in text form.
(5) For the purpose of domain registration, deviating provisions sometimes apply in relation to termination and these are set forth in § 13 of these general terms and conditions of business.
(1) Usage-independent charges are due and payable in advance for the corresponding contract term, provided that a differing invoicing period has not been agreed with the Client. Usage-dependent charges become due and shall be paid at the end of the corresponding invoicing period. All charges shall be based upon the prices respectively agreed with the Client.
(2) The Client shall be deemed to be in payment arrears, even without being sent a reminder notice, if he does not pay within 14 days of receipt of the invoice or of being informed that the invoice has been entered onto the Customer Information System (CIS).
(3) Unless otherwise agreed, the Client’s payments shall be made by SEPA direct debit collection. The Client shall issue the Provider, unless otherwise agreed, with a mandate under the SEPA core direct debit scheme to collect all of the charges arising from the contractual relationship. The mandate shall also apply to new bank details notified by the Client. The Provider shall notify the Client of the date of the corresponding direct debit collection in good time (so-called pre-notification). This notification shall be made by e-mail to the debtor at least one working day before payment is collected. The Client shall ensure that, at the time agreed for collecting the direct debit payment, there are sufficient funds in his account to cover the payment. The Client undertakes to indemnify the Provider against losses arising as a result of the financial institution where the Client holds his account withholding payment for any reason.
(4) For payments made using PayPal the corresponding PayPal terms and conditions shall apply in addition to these terms and conditions. The Client authorises the Provider to collect the corresponding invoice amount from his PayPal account.
(5) In the event of payment default the Provider shall be entitled to demand interest amounting to 10% per annum. The Client shall on the other hand be entitled to provide evidence that no interest – or significantly lower interest costs were incurred.
(6) The Provider shall enter an electronic invoice onto the Customer Information System (CIS) for each payment. The Client states his agreement to this. Should the Client request that an invoice be sent by post, the Provider shall be entitled to demand an appropriate fee for each invoice sent.
(7) In the event of the temporary blocking of services, the Client’s obligation to pay shall not be affected.
(8) The Client may offset claims against the Provider only against undisputed or legally enforceable counterclaims. This shall not apply to the Client’s warranty claims, where these have been set off against the Provider’s claims for payment.
(9) Private customers will be charged the statutory rate of value added tax applicable in their respective EU country.
(1) The Client shall notify the Provider immediately of any defects and assist the Provider in the event of possible defect rectification work by making every effort to assist, in particular by taking all reasonable measures in terms of ensuring data security.
(2) The Provider points out that, given the current state of the art, it is not possible to create hardware and software that functions flawlessly for all combinations of applications or that can be protected against any and all forms of manipulation by third parties. The Provider gives no guarantee that the hardware and software it provides will meet the requirements of the Client or that it is suitable for certain applications and furthermore that the hardware and software will function without crashing, is free of defects and free of malicious software. The sole warranty given to the Client by the Provider is that at the time the hardware and software is either used or provided, it will function essentially in accordance with the manufacturer’s specification under normal operating conditions and with normal maintenance.
(2) The Provider shall be liable in cases of intent and gross negligence in accordance with the statutory provisions.
(3) In the case of simple negligence, the Provider shall only be held liable in the event of a breach of a material contractual obligation, the proper fulfillment of which constitutes a condition sine qua non and on the fulfillment of which the customer regularly relies and may rely (cardinal obligation). In such cases the Provider’s liability shall be limited to the loss or damage that is foreseeable and typical for the type of contract.
(4) In the case of simple negligence, liability for all other damages shall be excluded, in particular for consequential losses, indirect losses and lost profits.
(5) The aforestated limitations shall not apply in the case of death, physical injury or damage to health or in the event of liability claims in accordance with the Product Liability Act.
(6) Where the Provider’s liability is excluded or limited the same exclusions and limitations shall also apply to the Provider’s employees, other staff, representatives and vicarious agents.
(7) Within the scope of application of the German Telecommunications Act (TKG) the provisions regarding liability set forth in § 44a of the Act shall remain unaffected in any case.
The Provider collects, processes and uses the Client’s personal data in accordance with the statutory data protection provisions. Supplementary information on this issue can be found in the data protection declaration of Host Europe GmbH.
(1) The Provider grants the Client the non-exclusive (simple) right to use the Provider’s software and third party software. This right of use shall be limited to the term of the contract. Transferring the right to use the software, other than with the agreement of the Provider for the purpose of contract transfer, or granting sub-licences for the software to third parties is not permitted. Continued use of the software following termination of the contract term is not permitted. The Client shall delete any copies of all software provided following termination of the contract term.
(2) For open source programs the respective currently applicable license agreements of the software provider shall apply in addition. The Provider shall make these license agreements available to the Client upon request. Where the terms and conditions of the software provider contradict these terms and conditions the terms and conditions of the software provider shall take precedence.
(3) For Microsoft products: Some services offered by the Provider are provided to the Client directly by Microsoft; the Provider remains the Client’s contractual partner in this case. The usage of Microsoft Office 365 Services is subject to the Microsoft End User Licence Agreement ("Ms EULA") and the Microsoft Cloud Agreement, which are both part of this agreement, including regulations regarding data protection and data handling. The Client is aware and accepts that Microsoft may use, store or process his data (including personal data) in accordance with the Microsoft Cloud Agreement. By booking Microsoft products, the Client accepts the appropriate Microsoft regulations and policies.
(4) Furthermore, the license agreements of the respective software manufacturer and, where appropriate, the manufacturer’s or software-specific additional terms and conditions of the Provider shall also apply.
The Client undertakes to indemnify the Provider internally against any and all third-party claims that arise from unlawful or illegal activities of the Client and against material errors in the information provided by the Client. This shall apply in particular to infringements of copyright law, trademark law, data protection law and competition law and to breaches of §3 (8) of this contract.
(1) The laws of the Federal Republic of Germany shall apply with the exception of the unified United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) Provided the Client is a registered trader, a corporate body under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship shall be Cologne. The Provider shall furthermore be entitled to bring legal action against the Client at the Provider’s general place of jurisdiction.
(3) The provider does not take part on a dispute resolution in front of a consumer arbitration board.
(1) With the exception of notices of termination, all information and notices issued by the Provider can be addressed to the Client through electronic communication channels, in particular via the CIS or by e- mail to the e-mail address stipulated by the Client. The limitation set forth in § 4 par. 4 shall however apply in the case of notices of termination.
(2) Should a provision of this contract be or become invalid or unenforceable or should it contain a loophole that must be closed, the validity of the remaining provisions shall remain unaffected. In place of the invalid or unenforceable provision the parties shall agree upon a new provision which comes as close as possible to the commercial purpose of the invalid or unenforceable provision. The same shall apply in the case of a loophole.
(1) Where the Client registers a domain name via the Provider, the contract shall come into effect directly between the Client and the respective issuing service or registrar. In such cases the Provider shall act for the Client in the capacity of an agent. The terms and conditions of the respective issuing service or registrar shall then apply (please see: https://faq.hosteurope.de/index.php?cpid=2062). In case of a dispute to the general terms and conditions of the Provider, the relevant registration terms and conditions shall prevail.
(2) The registration of domains is performed using an automated procedure. The Provider has no influence over the delegation of domain names. The Provider therefore assumes no liability in the event that the domain names for which the Client has applied cannot be allocated (delegated) at all or that the domain names are unencumbered by third party rights.
(3) The Client undertakes to provide a reasonable degree of cooperation during the registration, transfer and deletion of domains and when making changes to entries in the databases of the issuing agencies.
(4) The Client shall ensure that his domains and the content that can be accessed via these domains do not breach statutory regulations or infringe the rights of third parties. Depending upon the type of domain and/or the objective of the associated content, other national legislation must also be observed.
(5) Should third parties be able to substantiate that domains or their content infringe their rights or should the Provider become convinced that, on the basis of objective factors, an infringement of the law is probable, the Provider may temporarily block such content and implement measures to render the corresponding domain unavailable.
(6) The Client shall indemnify the Provider against third party claims for compensation resulting from the impermissible use of an Internet domain or its associated content.
(7) Should the Client waive his right to use a domain name vis-à-vis the respective issuing service or registrar he shall immediately inform the Provider thereof.
(8) Termination of the contractual relationship with the Provider shall not materially affect the existing registration contract for a domain concluded between the Client and the respective issuing service or registrar. However, cancellation orders relating to the domain registration must still be addressed to the Provider because the Provider manages the domain for the domain owner and therefore messages from the domain owner, including for contract termination, are to be regularly forwarded via the Provider to the respective issuing service or registrar.
(9) In order for the simultaneous termination of the domain registration to become effective when the customer terminates the contractual relationship with the Provider, the Client must give express permission in writing to confirm that the domain is also to be cancelled and that it may be deleted. If the Client is not also the domain owner, the cancellation or deletion order shall require written consent from the domain owner or Admin-Cs. In this context, “written” means the approved form as set forth in § 4 par. 4.
(10) The period of notice for issuing domain cancellation orders to the Provider for all domains connected with the top level domains .de, .at, .com, .net, .org, .biz, .info, .eu shall be six weeks to the end of the contract term for domain registration. For all other domains the period of notice shall be three months.
(11) With this in mind, the Provider shall immediately forward delayed domain cancellation orders to the domain registration service. We make clear however, that in the event that a cancellation order affecting the domain registration contract is not issued by the Client in good time and the period for which the domain is registered with the issuing service or registrar therefore becomes extended, the Client’s obligation to pay for the domain over this extended period shall remain effective.
(12) If the Client terminates the contractual relationship with the Provider, but does not issue any express instructions relating to what should happen to the domains that were previously registered through the Provider, the Client’s obligation to pay for the domain again remains effective. Following fruitless requests to the Client, sent to the e-mail address provided by the Client, to issue instructions regarding the domains within a reasonable period of time (§ 4 par. 4 sentences 1-3), the Provider shall be entitled to transfer the domains to the direct administration of the respective domain registration service or to release the domains on behalf of the Client. The same shall apply in the event that the Provider terminates the contractual relationship with the Client.
(13) If domains are not transferred to the administration of a different provider at the latest at the time the agency contract for domain management (concluded between the Client and the Provider) is terminated, the Provider shall be entitled to transfer the domains to the direct administration of the respective domain registration service or to release the domains on behalf of the Client. This shall apply in particular in the event that the Client has issued instructions relating to the transfer of the domain to another provider, but the instructions were not actioned in time.
(1) The Client shall check incoming e-mail messages for his various e-mail accounts at regular intervals. The Provider reserves the right to delete the Client’s incoming personal messages once these have been opened or forwarded or if the Client has not opened e-mail messages within three months of them being delivered to the mail server. The Provider furthermore reserves the right to return the Client’s incoming personal messages to the sender once the capacity limit applicable to the respective tariff is exceeded. The Provider shall also be entitled to set an appropriate limit for the size of incoming and outgoing e-mail messages.
(2) The Provider may reject e-mail messages addressed to his Clients on the basis of objective criteria, when the facts justify the assumption that an e-mail contains malicious software (viruses, worms, Trojans, etc.), the sender’s details have been falsified or disguised, or that the message is an unrequested or unsolicited commercial communication (junk mail).
(3) Sending so-called spam mails is strictly prohibited. This includes in particular the sending of inadmissible, unsolicited advertising to third parties. With regard to the sending of e-mails it is also prohibited to falsify the sender’s information or to disguise the identity of the sender by other means. When sending commercial communications of this character, the Client undertakes to clearly identify the e-mail as a commercial communication through its design and to comply with all of the applicable legal requirements.
(4) If the Client sends spam e-mails within the meaning of the previous paragraph, the Provider shall be entitled to temporarily block the Client’s e-mail accounts that were used for this purpose.
(1) The Client provides explicit assurance that the provision and publishing of his websites' contents or data neither infringes German law nor other relevant national legislation, in particular copyright law, trademark law, rights to the name, data protection law and competition law. The Provider reserves the right to temporarily block content that appears to be dubious in this respect. The same shall apply if the Provider is requested by a third party to modify or delete content on hosted websites, because it apparently infringes upon third party rights.
(2) In the event that the Client provides evidence that there is no risk of infringing third party rights or any other infringement of the law, the Provider shall make the websites in question available again to third parties. The Client herewith indemnifies the Provider against all third party claims for compensation resulting from impermissible content on one of the Client’s websites.
(4) When the Client has sole administration rights the Provider cannot manage the server. The Client therefore has sole responsibility for its content and the security of the server. He is responsible for installing security software, informing himself regularly about security vulnerabilities that become known and for removing such vulnerabilities. If the Provider makes security or maintenance software available this shall not release the Client from his responsibilities in this respect.
(5) The Client undertakes to set-up and manage his server such that security, integrity, network availability, other servers and the software and data of third parties and of the Provider are not put at risk.
(6) Should, as a result of his server security, a Client put at risk the integrity, network availability, other servers and the software and data of third parties and of the Provider or if the Client is under such a suspicion based upon objective circumstances, the Provider shall be entitled to temporarily block the server. This shall apply in particular to so-called denial of service attacks (DoS attacks) that the Client carries out via his server and also in the event that the Client is not responsible for the detrimental act or circumstances, e.g. if the Client’s server is manipulated and used by third parties. A wilful act carried out by the Client shall entitle the Provider to terminate the contractual relationship without notice and without first issuing a warning.
(7) If spam e-mails are sent via the server (see the section “Special conditions applicable to e-mail services”) the Provider shall again be entitled to temporarily block the server.
(8) Unless otherwise agreed, the Provider shall be under no obligation to back-up client data. If the Client instructs the Provider to provide a data backup service the Client shall, promptly and at regular intervals, check the data backed up by the Provider for completeness and its suitability for data reconstruction. The Client shall immediately inform the Provider of any irregularities discovered.
(9) The Provider shall be entitled to regularly check or audit the Client’s server for compliance with the contractual agreements and provisions, in particular the licensing provisions. In line with this, the Provider is in particular entitled to examine whether the Client has obtained a sufficient number of software licenses. The Client shall be obliged to cooperate during the performance of these audits. This includes providing the Provider necessary information and data in a timely fashion and adequate amount as well installing a perpetual software for this purpose or allowing an installation through the Provider.


text:
In order for the defendant to assert standing, the defendant must have a personal expectation of privacy in the place searched, and whether that expectation is reasonable based on concepts of real or personal property or on "understandings that are recognized and permitted by society." Minnesota v. Carter, 525 U.S. 83 (1998).
Minnesota v. Olson, 495 U.S. 91, 98-99 (1990) Overnight visitors have a reasonable expectation of privacy in their temporary shelter because "[s]taying overnight in another's house is a long-standing social custom that serves functions recognized as valuable by society... We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings."
An important limitation on the scope of the exclusionary rule is the good faith exception carved out in United States v. Leon, 468 U.S. 897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 (1984). In Leon and Sheppard, the court held that evidence derived from the execution of an invalid search warrant was admissible as long as the officers were acting in good faith. The good faith exception to the exclusionary rule has also been applied indirectly to reasonable errors in the description of the place searched (Maryland v. Garrison, 480 U.S. 79 (1987)) and directly to warrantless searches based on a statute subsequently held to be unconstitutional (Illinois v. Krull, 480 U.S. 340 (1987)). The court also has found the arrest of a suspect based on a quashed warrant that remained outstanding due to a clerical error to be within the good faith exception to the exclusionary rule. Arizona v. Evans, 514 U.S. 1 (1995). In Herring v. United States, the Court went even further to find the exclusionary rule did not apply when an officer reasonably believed that there was an outstanding arrest warrant but the belief turned out to be wrong because of the negligent bookkeeping error by another police officer. Herring v. United States, 129 S Court. 695, (2009). However if the police department is reckless in the maintaining of their warrant system or intentionally makes false entries, the good faith exception does not apply.
Franks v. Delaware, 438 U.S. 154 (1978) - In Franks, the court held that warrant affidavits containing reckless or intentional false statements by the affiant are subject to challenge by a motion to controvert. If the affidavit, cleansed of the challenged statements, does not establish probable cause, the defendant is entitled to suppression of the derivative evidence. Franks, 438 U.S. at 171-72. Material omissions as well as false statements are subject to challenge. The due process principles of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny concerning the production of exculpatory or potentially exculpatory evidence are applicable to suppression hearings involving a challenge to the truthfulness of allegations in the affidavit for a search warrant.
A warrant must describe with reasonable certainty the place to be searched and the things to be seized. Groh v. Ramirez, 540 U.S. 551 (2004).
The Supreme Court has recognized knock and announce as a component of the fourth amendment. Wilson v. Arkansas, 514 U.S. 927 (1995); see also Richards v. Wisconsin, 520 U.S. 385 (1997). The Supreme Court allows no-knock entry upon "reasonable suspicion" of officer danger, with some unspecified level of balancing for unnecessary destruction of property in making the entry. United States v. Ramirez, 523 U.S. 65 (1998).
The fourth amendment prohibits warrantless entry into a home for the purposes of making an arrest. Kirk v. Louisiana, 536 U.S. 635, 637-39 (2002); Payton v. New York, 445 U.S. 573, 586-87 (1980). To justify a warrantless entry into a residence, the government must show the existence of probable cause and exigent circumstances. Kirk, 536 U.S. at 638. The existence of an arrest warrant allows entry into a dwelling in which the defendant lives, but entry into the home of a third party must be supported by a search warrant or exigent circumstances. Steagald v. United States, 451 U.S. 204, 211-22 (1981). A non-exigent entry to affect an arrest of an overnight guest of a third party requires at least an arrest warrant to comply with the fourth amendment. Minnesota v. Olson, 495 U.S. 91 (1990).
Before an officer may obtain a search warrant he must convince a magistrate that he possesses sufficient information to believe that the place he is requesting to search will yield contraband, evidence or a person. The officer may rely on information he obtained from others. The information the officer receives does not need to be reliable: as long the totality of the information is deemed reliable, was the officer able to corroborate any of the information based upon observation or investigation (Illinois v. Gates, 462 U.S. 213 (1983). Police are able to act on an anonymous tip that named the defendants as a drug dealers and specified facts about how dealing take place. Police independently observed a transaction as it was described. Furthermore, the Warrant must describe the location to searched and the items to be seized.
The traditional rule is that warrantless searches and seizures are per se unreasonable and that the burden is on the government to establish that a search or seizure falls within a well-established exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); Stoner v. California, 376 U.S. 483, 486 (1964).
Consent - Voluntary consent of an authorizing party - particularly concerning for juvenile cases since the parent is usually the home owner granting the police permission to search the youth's room. The officer is not required to tell the parent that they may deny the request to search. United States v. Drayton, 536 U.S. 194, 206-07 (2002); Schneckloth v. Bustamonte, 412 U.S. 218, 226-28 (1973). Consent to search may be given by a third party who has common authority over the place to be searched. United States v. Matlock, 415 U.S. 164, 170-71 (1974).
Plain view - In Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971), the plain view doctrine allows a warrantless seizure where the officers inadvertently observed an item in a place where they have a right to be, and probable cause to believe the item is subject to seizure is readily apparent. In Texas v. Brown, the court upheld the seizing of balloons containing heroin when the officer observed them when the driver opened his glove box to retrieve his ID. However, the officer may not move an item to get a better view of the serial number. Arizona v. Hicks, 480 U.S. 321 (1987). In Horton v. California, 496 U.S. 128 (1990), the court relaxed the requirement that the item be found in plain view inadvertently. In Horton, the court approved the seizure of weapons not named in the search warrant for rings that were the proceeds of an armed robbery; the incriminating nature of the guns was readily apparent to the searching officer, and the officer was lawfully present on the premises deliberately to search for evidence.
Custodial Arrest - An individual may be searched as a result of any custodial arrest. The type of charge is irrelevant as long as the person was taken into custody. The officers may conduct a full search of the person and the area within his or hers immediate reach. In Chimel, Chimel v. California, 395 U.S. 752 (1969), The Supreme Court held that a search incident to arrest may only include "the arrestee's person and the area ‘within his immediate control’-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence." Id.
Exigent Circumstances - Exigent circumstances are an exception to the requirement for a warrant to search. The police may enter a residence if they are in immediate pursuit of the individual, they believe someone is in danger or to search residence for survivors. Hot Pursuit - Payton v. New York, 445 U.S. 573 (1980) Imminent fire safety needs in the aftermath of a blaze - Michigan v. Clifford, 464 U.S. 287 (1984) Emergency - Arizona v. Hicks, 480 U.S. 321, 324-25 (1989) An officer may hold an occupant outside of his residence while obtaining a search warrant if the officer has probable cause to believe the home contains evidence of a criminal offense and the person may enter the property and destroy evidence. Illinois v. McArthur, 531 U.S. 326, 331-36 (2001). Texas - To justify a warrantless search, the State must show the existence of probable cause at the time the search was made, and the existence of exigent circumstances, which made the procuring of a warrant impracticable. McNairy v. State, 835 SW.2d 101, 106 (Tex. Crim. App.1991); Hooper v. State, 516 SW.2d 941, 943 (Tex. Crim. App.1974).
Vehicle searches - Police may search a vehicle incident to a recent occupant’s arrest only 1 the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search 2 it is reasonable to believe that evidence regarding the arrest might be found in the vehicle. Arizona v. Gant, 556 U.S. 1078 (2009). If the police have probable cause to search the vehicle then they have the ability to search the containers and bags within the vehicle. California v Acevedo, 500 U.S. 565, 579-80 (1991); United States v Ross, 456 U.S. 798, 824 (1982). This includes containers belonging to the passengers that are large enough to conceal the subject of the search. Wyoming v. Houghten, 526 U.S. 295 (1999).
Inventory Search - Police are free to search a person or his vehicle to inventory its contents if the individual is arrested. The police action is not to search for evidence of criminal activity but to make a list of the accused belongings to prevent the police from being falsely accused of theft and criminal damage by the owner.
Border Searches - A search may be conducted of all persons and property entering the country without individualized suspicion. United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
School Searches - The standard is relaxed with respect do school searches, probable cause is not required. Instead, the Supreme Court in New Jersey v. T.L.O., 469 U.S. 325 (1985), stated, the “legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception;" second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place. Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.
Texas case - Russell v. State, 74 SW.3d 887 (Tex. App. 2002).
The school search involved the pat down by an officer at the request of the principal of a student wearing baggie shorts who kept playing with the pocket of his shorts. The student was in the office as a result of being caught smoking on campus. The juvenile made no threats and no witness mentioned a weapon. The principal feared the pocket contained a weapon so she ordered the juvenile to empty his pockets, he refused. The principal called the school officer in to conduct a search. The officer patted the juvenile down and found marijuana in his pocket.
In, Board of Education of Independent School District no. 92 of Pottawatomie CountyEarls 122 S Court. 2559 (2002), the Supreme Court found that drug testing all youth involved in school activities was permissible because participation was a privilege. The student could avoid testing by foregoing the activity.
Independent Source Rule - In Murray v. United States, 487 U.S. 533 (1988), the court elaborated on the independent source rule, which allows evidence to be used that was the product of an unlawful intrusion as long as a separate and distinct evidentiary trail led to the same place. In Murray, agents unlawfully entered a warehouse and saw bales of marijuana. Without seizing anything, the officers drafted a warrant affidavit referring only to information in their possession prior to the entry; all reference to the illegal search was omitted. The court approved the procedure for establishing an independent basis for the seizure of the marijuana.
Inevitable Discovery - In Nix v. Williams, 467 U.S. 431 (1984), the court approved the hypothetical inevitable discovery doctrine, allowing the evidence where the government established that the illegally obtained evidence would have been discovered through legitimate means independent of official misconduct.

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These rulings are rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.
A Motions Hearing in the above-entitled matter was held on November 16, 2005 at Catuogno Court Reporting in Worcester, MA.
On April 29, 2005 Parents filed a Hearing Request with the Bureau of Special Education Appeals. On August 17, 2005 a Motions Hearing was held and on September 7, 2005 the Hearing Officer issued several Rulings and an extensive Order authorizing the Hampden-Wilbraham Regional School District (HW) to conduct a comprehensive evaluation of James, setting conditions, and establishing timelines for the evaluation, team meeting, and further BSEA proceedings. Please refer to DECISION ON MOTIONS issued on September 7, 2005 which is hereby incorporated by reference into these Rulings.
1) MOTION FOR ORDER CORRECTING THE RECORD AND EFFECTUATING A REDACTION OF THE FALSE AND MISLEADING TITLE OF PREVIOUS MOTION OF HW DATED AUGUST 8, 2005 (PM1).
2) MOTION FOR ORDER OVERRIDING THE FAILURE OF HW TO COMPLY WITH 603 CMR 23.07(2) AND DIRECTING HW TO PROVIDE A COPY OF [JAMES’] COMPLETE, CUMULATIVE AND CONFIDENTIAL EDUCATIONAL FILE (PM2).
3) MOTION FOR ORDER OVERRIDING THE FAILURE OF HW TO CONVENE A TEAM MEETING WITHIN TEN DAYS OF RECEIPT OF INDEPENDENT EDUCATIONAL EVALUATION PURSUANT TO 603 CMR 28.04(5)(d); AND FOR AN ORDER DIRECTING HW TO COMPLY WITH SAID STATUTE BY CONVENING A TEAM MEETING TO REVIEW THE INDEPENDENT EDUCATIONAL EVALUATION (PM3).
4) MOTION FOR ORDER DIRECTING THAT THE HW EVALUATIONS PREVIOUSLY ORDERED TO BE COMPLETED BY HW BE DONE IN AREAS OF IDENTIFIED AS WELL AS SUSPECTED NEED AND BE PERFORMED BY QUALIFIED EVALUATORS, AND FURTHER, THAT ALL EVALUATIONS PREVIOUSLY PERFORMED BE REVIEWED AND CONSIDERED BY HW EVALUATORS. (PM4).
5) MOTION FOR ORDER OVERRIDING THE REFUSAL OF HW TO COMMUNICATE WITH [JAMES’] PARENTS REGARDING HIS REGULAR EDUCATION NEEDS AND DIRECTING HW TO COMMUNICATE DIRECTLY WITH PARENTS REGARDING [JAMES’] REGULAR EDUCATION (PM5).
Parents Motions PM1 through PM5 were accompanied by written arguments, exhibits and affidavits.
Attorney also filed HW’S MOTION TO EXTEND TIMELINE ORDERED BY THE HEARING OFFICER IN HIS DECISION OF SEPTEMBER 7, 2005 with accompanying affidavits (SM1).
On October 12, 2005 HW’s Attorney filed with the BSEA HW’S MOTION TO DISMISS THIS APPEAL with accompanying written argument, exhibits and affidavits (SM2).
On October 18, 2005 Parents’ Attorney filed with the BSEA Parents’ Opposition To HW’s Motion To Dismiss with accompanying written argument and exhibits.
On November 1, 2005 Parents’ Attorney filed with the BSEA a MOTION FOR SUMMARY DECISION AND AN ORDER DETERMINING THAT AS A MATTER OF LAW, [JAMES] HAS A DISABILITY OR DISABILITIES PURSUANT TO THE DEFINITIONS CONTAINED WITHIN FEDERAL AND STATE LAW. This motion was accompanied by extensive exhibits (PM6).
On November 10, 2005 HW’s Attorney filed with the BSEA HW’s Opposition to Parents’ Motion For Summary Decision with accompanying written argument and one exhibit.
A Motions Hearing was scheduled for November 16, 2005 at Catuogno Court Reporting in Worcester, MA. However, on November 15, 2005 the Hearing Officer was notified by both Parents’ Attorney and Parents that Parents’ Attorney had been discharged and that Parents would be proceeding at the Motions Session pro se. On November 16, 2005 the scheduled session took place and an extensive discussion on numerous issues was held on the record but formal oral argument regarding the outstanding motions did not take place, due to the unique circumstances of this case. Oral argument was re-scheduled for December 2, 2005. The parties subsequently agreed to submit written supplementary arguments/exhibits /affidavits to the seven outstanding motions in lieu of oral arguments. The postmark date for receipt of such written materials was set for December 5, 2005 and all written supplementary arguments/exhibits arrived at BSEA by December 8, 2005.
In deciding these motions the Hearing Officer has considered all of the above written motions, arguments, exhibits, and affidavits filed by Parents’ former attorney and HW’s attorney, as well as all of the written supplementary arguments, exhibits and affidavits filed by Parents, pro se and HW’s attorney. The Hearing Officer has also incorporated by reference into these Rulings his DECION ON MOTIONS dated September 7, 2005. Finally, the Hearing Officer has reviewed and considered the oral arguments/representations made by HW’s and Parents’ Attorney at the August 17, 2005 Motions Hearing as well as all written materials filed by the parties since Parents’ Hearing Request on April 29, 2005.
PM 1 is hereby DENIED . Parents essentially re-argue the issues which were the subject of the August 17, 2005 Motions Hearing and which were ruled upon in the September 7, 2005 DECISION ON MOTIONS (9/7/05 DOM). I specifically refer the parties to pages 3 through 8 in the 9/7/05 DOM.
The issue of the STAT Team raised by Parents in this motion was not pertinent to the 9/7/05 DOM authorizing HW to conduct a comprehensive evaluation. This issue may be raised by Parents at the hearing.
Finally, Parents were provided a complete copy of the tapes of the August 17, 2005 Motions Session. The tape recorder was never turned on and off during the August 17, 2005 Motions Session except at the end of each side of the tape when the tape ran out and needed to be turned over or a new tape inserted, or if the Hearing Officer said “Off the record.” Any implication otherwise is totally unfounded. Nor does any discussion continue on the tape after the Hearing Officer ended the motions session. This motions session was conducted via telephone. At the end of the motions session the session was adjourned, the participants said good-bye, the Hearing Officer turned off the tape recorder and hung up the telephone.
Parents allege that HW has failed to provide a copy of James’ complete, cumulative and confidential educational file. HW responds that on September 23, 2005 it provided Parents’ Attorney with copies of all of James’ school records from January 1, 2004 onward (400 pages) as requested. HW also responds that it has previously provided extensive copies of James’ school records pursuant to Parents’ previous hearing request before the BSEA (BSEA #02-1842) consisting of 206 exhibits; Parents’ Program Quality Assurance Complaint in 2003 consisting of 75 exhibits; and Parents’ Office of Civil Rights Complaint in 2004 consisting of 99 exhibits. HW alleges that these three sets of exhibits compromised over 1,000 pages. Finally, HW responds that in September 2004 Parent spent hours in HW’s special education office flagging documents in James’ special education file that she wanted copied and which were provided to her consisting of approximately 400 pages. In its supplemental response to these motions HW includes copies of the four assessments that have been completed pursuant to the Hearing Officers’ ORDER in the 9/7/05 DOM –speech-language evaluation; occupational therapy evaluation; educational history and assessment; and classroom teacher’s educational assessment. HW alleges that it has already provided copies of all documents pertaining to James in its files both currently and over the past few years; that additional documents requested by Parents either do not exist, have already been provided to Parents, or are not kept by HW. HW emphasizes that it has no other educational records of James to provide to Parents other that those records which have already been provided to Parents.
Parents obviously believe that they do not have James’ complete educational file. It is equally clear that HW believes that it has furnished everything they have in James educational file to Parents pursuant to the Student Records Act.
PM2 is GRANTED . At Parents’ election I order one of the two following options to take place. Either: 1) Consistent with the Student Records Act HW furnish Parents a complete copy of James cumulative educational file up to the present date and all at the same time; or 2) Consistent with the Student Records Act Parent be allowed, once again, to review James’ complete educational file and to specify specific documents she wishes HW to reproduce for her. Under either option HW may impose an appropriate fee for copying costs. Given that James’complete educational file is exceptionally large, option 2 may be the more cost effective choice.
On August 31, 2005 HW received from Parents the results of a parentally funded private evaluation performed by Dr. Robert Kemper. Parents contend that HW has failed to comply with 603 CMR 28.04(5)(f) by failing to convene within ten days a meeting to consider the “Independent Educational Evaluation”. HW responds that HW received the Kemper evaluation on August 31, 2005 which was two weeks after the Motions Hearing on August 17, 2005 on HW’s Motion To Authorize HW To Conduct Comprehensive Evaluation Of The Student And Override The Lack Of Consent By The Parents; and which was one week prior to the Hearing Officers’ 9/7/05 DOM which authorized HW to perform a comprehensive evaluation of the student. HW contends that it is not obligated to consider privately obtained evaluations where Parents have denied consent for HW to perform its own evaluations; and that HW will convene a team to consider the Kemper report once HW has completed its own evaluations as ordered by the Hearing Officer.
(5) Independent educational evaluations . Upon receipt of evaluation results, if a parent disagrees with an initial evaluation or reevaluation completed by the school district, then the parent may request an independent educational evaluation . Emphasis added.
Dr. Kemper’s evaluation is a privately obtained parental evaluation. It is not an IEE requested by Parents after the school evaluation. The 603 CMR 28.04(5)(f) 10 day rule applies only to IEE’s, not privately obtained parental evaluations.
Pursuant to 34 CFR 300.502(c)(1) this private evaluation must ultimately be considered by HW after HW has completed its evaluation of James. Further, Parents may introduce this private evaluation at a BSEA Hearing.
III. The District shall abide by evaluation procedures as outlined in state and federal law.
Parents allege that HW refuses to communicate with them regarding James’ regular education needs and is treating them in an inequitable and discriminatory manner. Parents seek an order directing HW to communicate with them directly regarding regular education matters. Parents’ Motion and Mother’s affidavit (Exhibit A appended to PM5) describes the circumstances and situations in which she believes that HW has refused to communicate with Parents. HW’s response specifically disputes and/or denies Parents various contentions.
1. As both parties are represented by counsel, I have instructed school district staff that all communications directly or indirectly related to the current litigation (BSEA # 05-4878) shall be forwarded to my attention. I will respond directly to you as parents’ attorney….
2. Please advise your client that the District will not respond to her questions related to the current litigation unless they are in the form of discovery as allowed under the applicable regulations….
Parent/teacher conference to talk about your child will be held on November 10, 2005.
11. The Student’s mother then began to talk about what she perceived to be unfairness and discrepancies in the Hearing Officer’s recent decision. I was extremely uncomfortable with the nature of this conversation, particularly as it occurred in a public place within hearing of several other individuals. I was also uncomfortable because I was inappropriately being placed in the position of discussing issues relating to the ongoing legal dispute between the parents and the school district.
(Tab 6) indicates that Parents did have a Parent-teacher conference on November 10, 2005 and that Parents and James’ teacher are communicating via a “notes home” agenda book. I encourage Parents and HW to continue to communicate regarding James’ regular education program and experience.
HW’S Motion to extend the timelines ordered by the Hearing Officer in his 9/7/05 DOM is GRANTED for reasons that will become apparent in RULING ON SM 2 below.
3. All claims from October 14, 2004 to the present time based upon Parents’ refusal to abide by the Hearing Officer’s ORDER in the 9/7/05 DOM.
Parents’ oppose HW’s Motion to Dismiss for any time periods.
HW moves to dismiss all claims from April 29, 2002 to October 13, 2004 based upon Parents’ consistent refusal to consent to HW evaluations. The October 13, 2004 date is thirty school days from HW’s June 10, 2004 team meeting request to evaluate James which was refused by Parents i.e., the thirty school days HW would have had to complete the evaluation if Parents had given their consent. I shall rule on this time period within the context of my reasoning for the final time period sought by HW.
HW moves to dismiss all claims from October 14, 2004 to the present time as a result of Parents’ failure/refusal to abide by the Hearing Officer’s ORDER of September 7, 2005.
II. The Parents may meet with the School District’s chosen evaluators to provide their input regarding the areas assessed. In all other respects the parents shall not interfere with the assessment and shall fully cooperate with all assessment procedures .
learned something about [James] over the years….
answer sheets, once the testing is completed.
We continue to be opposed to your involvement as an issue of professional ethics.
prior involvement with our son….
Also on September 27, 2005 Parent left a voice mail message on Dr. Ecker’s telephone confirming that Parents had faxed Dr. Ecker the above letter; that their attorney also had sent Dr. Ecker a letter; and that Parents wanted to make sure that both had been received by Dr. Ecker (SM2-Ex.7).
In Dr. Ecker’s October 7, 2005 affidavit (SM2-Ex. 7) he stated that both letters were an attack on his personal and professional ethics as well as a question of his competence; that he was unaware of any involvement in any civil matter in Boston or any other court; that said letters subjected him to harassments, threats, and clearly were an attempt to compromise his professional abilities; and that based upon his level discomfort and the untenable situation created by these communications, he could not go ahead with the testing of James until the issue of these above referenced letter can be resolved.
BSEA Rule XVII(B) and 801 CMR 1.01(7)(g)(2) provide for dismissal of a case for failure to comply with these rules or with any Hearing Officer Order. The language in these two administrative regulatory provisions mirrors the language in both the Massachusetts Rules of Civil Procedure Rule 41B and the Federal Rules of Civil Procedure Rule 41B which govern orders of the Massachusetts and Federal Courts. BSEA Rule (B)(16) also gives the Hearing Officer the duty and authority to censure, reprimand or otherwise ensure that all participants conduct themselves in an appropriate manner.
Given the 9/7/05 DOM Order #2 cited above; and given Parents’ and their then Attorney’s letters cited above; Parents and their then Attorney have clearly violated the Hearing Officer’s Order not to interfere with the assessment and to fully cooperate with all assessment procedures. The above-cited letters can have no purpose other than to interfere with Dr. Ecker’s evaluation of James. These letters attempt to impose terms and conditions on the neuropsychological/psycho-educational evaluation sought by HW and ordered by the Hearing Officer; to intimidate, harass and threaten HW’s chosen evaluator; and to insure that such evaluation will not take place.
I find the above actions taken by Parents and their then Attorney to be contemptuous. Were this matter being held in a state or federal court, such actions would subject them to a finding of contempt. Dismissal has been found to be a justified and appropriate remedy where there is a clear record of delay or contemptuous conduct by the plaintiff and where the non-compliant litigant has manifested a disregard for orders of the court. John’s Insulation v. L. Addison & Associates 156 F.3d. 101 (1 st Cir. 1998); Legault v. Zambarano 105 F.3d 24 (1 st Cir. 1997); Carter v. Memphis 636 F. 2d. 159 (6 th Cir. 1980).
I do not completely dismiss Parents’ appeal for two reasons. First, Parents have apparently allowed all other ordered evaluations to take place. Second, I am mindful that at the heart of this dispute is a seven-year-old boy and that this appeals process is to insure that children receive those services to which they are entitled under special education law if they are eligible for special education and require special education services. However, given Parents’ position regarding James’ disabilities/need for special education (see 9/7/05 DOM), the neuropsychological/psycho-educational evaluation is critical to HW’s determination of James’ eligibility/ineligibility for special education; the types and degree of services necessary, if any; and for the effective presentation of HW’s case at a BSEA Hearing. HW is legally entitled to conduct its own evaluation of James if Parents wish James to receive special education services from HW. (See complete analysis of statutory, regulatory and case law in 9/7/05 DOM). I note that had Parents/Parents’ then Attorney not interfered with the neuropsychological/psycho-educational evaluation process; and had Parents/Parent’s then Attorney followed the Hearing Officer’s 9/7/05 ORDER; the evaluation process would have been completed; a team meeting would have been held; a determination of special education eligibility would have been made either finding James eligible and developing an IEP or finding James ineligible; and, if necessary, a hearing would have already taken place.
Parents’ actions in violating the Hearing Officer’s Order not to interfere in the evaluation process undercuts the integrity of the BSEA hearing process. “It is axiomatic that a party may not ignore a district court order with impunity.” John’s Insulation v. L. Addison & Associates 156 F.3d. 101(1 st Cir. 1998). To allow Parents’ contemptuous actions and conduct without a substantial sanction would be to allow Parents to ignore BSEA Orders with impunity and to escape the foreseeable consequences of their non-compliance. See also Legault v. Zambarano 105 F. 3d 24 (1 st . Cir. 1997); In re: Medford Public Schools 10 MSER 18 (2004). Parents filed this appeal on April 29, 2005. Parents actions have caused at least a three-month delay in this appeal. The IDEA 2004, with its two year statute of limitations, took effect on July 1, 2005 slightly more than two months after Parents filed this BSEA appeal. Therefore, as a sanction for Parents’ blatant disregard of a BSEA Order, Parents claim for relief shall be allowed to go back only two years to April 29, 2003 instead of April 29, 2002. Therefore, all Parental claims for relief prior to April 29, 2003 are hereby DISMISSED WITH PREJUDICE .
Furthermore, any further interference with HW’s performance of a neuropsychological-psychoeducational evaluation of James with a professional/professionals of HW’s own choosing will result in a complete DISMISSAL WITH PREJUDICE of BSEA #05-4878.
Neuropsychological/Psycho-educational Assessment-report on intellectual abilities/cognitive process, emotional/personality features, behavior, learning style, academic skills/achievement in reading, math, spelling and writing, attention, memory, executive functioning, and language, including an observation in his educational placement if he is not being home schooled.
II. Within forty-five (45) school days of the date of the receipt of this ORDER the Hampden-Wilbraham Regional School District shall convene an Evaluation Team to consider the findings and recommendations of said evaluation; all other HW evaluations performed pursuant to the 9/7/05 DOM ORDER ; and Parents’ private evaluation performed by Dr. Kemper.
III. The Parents may meet with the School District’s chosen evaluator(s) to provide their input regarding the areas assessed. In all other respects, the Parents shall not interfere with the assessment and shall fully cooperate with all assessment procedures .
IV. The District shall abide by evaluation procedures as outlined in state and federal law.
V. The District shall forward copies of evaluation reports to the Parents at least two (2) days prior to the scheduled TEAM meeting to consider the assessments.
VI. Within 45 school days Hamden-Wilbraham Regional School District shall provide Parents with two (2) copies of the proposed Individual Education Plan or Finding of No Special Needs.
VII. Hampden-Wilbraham Regional School District shall fund, at Division of Health Care Finance and Policy Ambulatory Care (Rate Setting) rates, independent evaluations requested by the Parents in the areas tested by Hampden-Wilbraham Regional School District if Parents disagree with those assessments.
VIII. Within ten (10) business days of the issuance of the Individual Education Plan or Finding of No Special Needs, the parties shall submit a written status report to the Hearing Officer.
Parents move for a Summary Decision/Order that as a matter of law James has a disability/disabilities pursuant to the definitions contained within federal and state statutes and regulations. Parents cite numerous evaluations which have been performed upon James and their findings in support of their motion. HW opposes Parents’ Motion for Summary Decision on both legal and factual grounds.
When a Party is of the opinion there is no genuine issue of fact relating to all or part of a claim or defense and he is entitled to prevail as a mater of law, the Party may move, with or without supporting affidavits, for summary decision on the claim or defense. If the motion is granted as to part of a claim or defense that is not dispositive of the case, further proceedings shall be held on the remaining issues. Emphasis added.
See also Mass. R. Civ. P 56(c); Fed R. Civ. P. 56(c); Celotex v. Catrett 477 U.S. 317, 322 (1996); Catlin v. Board of Registration of Architects 414 Mass. 1, 604 N.E. 2d 1301, 1306 (Mass. 1992); In re: Boston Public Schools 39 IDELR 20 (2003). All evidence must be viewed in the light most favorable to the party opposing summary judgment, Anderson v. Liberty Lobby, Inc . 477 U.S. 242, 248 (1986); In re: Boston Public Schools , supra.
Of all of the Parent exhibits cited in PM6, only one exhibit is an HW evaluation and that is an occupational therapy evaluation which is almost four years old. The remaining evaluations are parentally obtained private evaluations. HW alleges that none of these evaluators observed James in his public school setting or spoke with his teachers. HW alleges that James’ teachers did not see the level of disability manifested in James’ classroom performance which was described by the parentally obtained private evaluations. Clearly there are genuine issues as to material facts in this case. Further, what has been a crucial issue in this appeal has been Parents’ lack of /refusal to consent to school initiated evaluations (See 9/7/05 DOM), and this continues to be the issue regarding the critical neuropsychological/psycho-educational evaluation by HW that still has not yet taken place due to Parental actions (See RULING ON SM 2 , above).
Once the school based/Hearing Officer Ordered evaluations have been completed, pursuant to 20 U.S.C. 1414(b) and (c) and 603 CMR 28.5, a team will meet to consider said evaluations, along with Dr. Kemper’s private evaluation (34 CFR 300.502(c)(1)), to make a determination regarding special education eligibility. If the team determines that James requires special education services, it will develop an Individual Education Plan (IEP). After a hearing on the merits the Hearing Officer may either affirm the findings of the team or override them. However, the Hearing Officer will not usurp the team decision prior to the team process which is legally mandated under state and federal special education law.
(9) Eligible student shall mean a person aged three through twenty-one (3-21) who has not attained a high school diploma or its equivalent, who has been determined by a Team to have a disability(ies), and as a consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related serve . An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum. In determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential . Emphasis added.
For all of the above reasons PM 6 is DENIED .
James is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
The reauthorized IDEA (IDEA 2004) specifically provides for only a two year statue of limitations for appeals filed under IDEA 2004 which went into effect July 1, 2005.


Mark Reyes (argued), Loevy & Loevy, Chicago, IL, for Plaintiff-Appellant.
Mara S. Georges, Julian Henriques (argued), Office of the Corporation Counsel Appeals Division, Chicago, IL, for Defendants-Appellees.
Officers Frank Quinn and Walter Puchalski took Askew into custody and charged him with making an armed threat, placing Padgett and Lis in apprehension of battery. He was released on bond the next morning. Charges were dismissed when Padgett and Lis failed to appear in court. Askew then sued Quinn and Puchalski under 42 U.S.C. § 1983. He contends that they violated his rights under the fourth amendment by arresting him without probable cause. (Askew also seeks to hold the City of Chicago liable on state-law theories that we need not discuss.) The district court granted summary judgment for the defendants. 2005 U.S. Dist. LEXIS 8276 (N.D. Ill. Apr. 6, 2005).
Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986), holds that allegations by eyewitnesses supply probable cause when the statements, if true, show that a crime has occurred. It does not matter, Gramenos adds, whether the accused person denies the allegations. Police need not conduct an investigation but may arrest and let prosecutors and courts determine who is telling the truth. See also, e.g., Wilson v. McRae's, Inc., 413 F.3d 692 (7th Cir. 2005); Driebel v. Milwaukee, 298 F.3d 622, 643-44 (7th Cir. 2002); Pasiewicz v. Lake County Forest Preserve District, 270 F.3d 520, 524 (7th Cir. 2001).
The Gramenos principle has qualifications: when, for example, the police know that the accuser may harbor a grudge against the accused, see Hebron v. Touhy, 18 F.3d 421 (7th Cir. 1994) (dictum) (evicted tenants' accusations against landlord), or when it is doubtful that the allegations (even if true) add up to a crime, see BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986), then some follow-up may be required to make an arrest "reasonable." The police did not have any reason to suspect that Padgett and Lis were out to frame Askew, however, and a threat to kill or maim regularly is dealt with by criminal prosecution. Askew was armed with a knife, and his car was stopped in the middle of a thoroughfare, itself an offense and a potential reason for arrest. See Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); Atwater v. Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001).
Recognizing that the story Padgett and Lis told, if taken at face value, establishes probable cause for arrest, Askew wants a crack at arguing to a jury that the officers should not have believed his accusers. There was a discrepancy between the radio dispatch (that the assailant had a gun) and the statements at the scene (that the assailant had a knife). If Padgett and Lis changed their stories, perhaps they were making it all up — though perhaps the dispatcher heard Lis wrong on the phone or misspoke on the radio. Askew adds that Padgett and Lis acted suspiciously by inquiring whether they would be compelled to appear in court and what would happen to them if they did not. Askew takes that as evidence that they were bringing false charges, though perhaps the police thought it implied their fear of Askew and a desire to disappear from his life as quickly as possible. Finally, Askew sees it as suspicious that Padgett and Lis signed the criminal complaint before the officers completed it (a task they did not finish until reaching the stationhouse); were they anxious to avoid a perjury rap? Only a jury can sort out these inconsistencies, Askew maintains.
If these subjects were material, then there would be work for a jury to do. They are not material. Padgett and Lis said that they had been threatened by a man with a weapon, and a search revealed that Askew (whose maroon car was just where the 911 call placed the incident) had a weapon. It is possible, we suppose, that Padgett and Lis were trying to get someone — anyone — in trouble and were surprised when an innocent person happened to be carrying a knife, and then quickly changed their story from gun to knife, but this is unlikely. Why would mischief-makers hang around, waiting to be caught and prosecuted themselves? A slip of the tongue (whether by Lis during the call or by the dispatcher) is much more likely. Defendants suggest another possibility: perhaps someone else saw the altercation and made an independent 911 call, describing the weapon incorrectly. Askew could have cleared this up by obtaining a recording of the 911 call. He did not do so.
The idea behind Gramenos and similar decisions is that police often encounter competing and inconsistent stories. One person makes an accusation; another denies it; police on the scene must act yet lack the tools to determine immediately where the truth lies. The Constitution permits them to initiate the criminal process and leave the sifting of competing claims and inferences to detectives, prosecutors, judges, and juries in the criminal prosecution. If states think that this gives accused persons insufficient protection, they are free to enact statutes either staying the officers' hand or providing recompense to those exonerated in the criminal process.
The sort of inconsistencies to which Askew points are normal. Eyewitnesses remember things differently. Police don't always follow correct procedure (here, defendants concede, they should have completed the charge form before the complaining witnesses signed). If these were sufficient to permit second-guessing and damages, then the job of policing would be very risky financially as well as physically. Police would respond by disbelieving witnesses (or not acting on allegations), lest they end up paying damages, and the public would suffer as law enforcement declined. Often the victims themselves live in the shadows and do not fancy a trip to court, which may expose aspects of their lives they prefer to keep hidden; arresting on their accusations would be especially risky to the police; yet everyone is entitled to protection from crime, and that protection would erode if the arrested person could collect from the police every time a civil jury concludes that it would have handled the incident differently. That's why we have held that the sort of inconsistencies and glitches that characterize real investigations do not disentitle police to rely on eyewitness statements. See, e.g., Spiegel v. Cortese, 196 F.3d 717, 724-26 (7th Cir. 2000); Gerald M. v. Conneely, 858 F.2d 378, 381 (7th Cir. 1988).
It is uncontested that Padgett and Lis, in view of Askew, identified him as their assailant. He was found with a knife, which Padgett and Lis identified as the weapon that Askew had brandished. His car was stopped in the median of a busy street, a position consistent with a road-rage altercation. These uncontested facts supply probable cause for his arrest.