Subpoenas and documents – do schools need to comply?

Subpoenas are typically used in court proceedings as a means of obtaining information that a parent hopes will be favourable to their case, or as part of the evidence-finding process. A subpoena may be directed to the relevant education department of your state or to a school directly. Except in limited circumstances, parties served with subpoenas are expected to comply with their requirements. Principals should immediately obtain legal advice if they are unsure of their school’s obligations to comply with a subpoena.

What is a subpoena?

A subpoena is a document filed by a party involved in court proceedings; usually a parent or an independent children’s lawyer. It is directed to a specific person or role within an organisation and must be personally served, unless consent is provided for it to be served another way (e.g. via email). Conduct money must be paid by the party filing the subpoena to cover the reasonable costs of production of any documents or attendance at court.

A subpoena can require:

• the production of documents including any recorded material and not simply paper documents
• a person to attend court to give evidence
• the production of documents and a person to attend court to give evidence.

It is very rare for a subpoena to require a staff member to attend court. Most subpoenas directed to schools require the production of documents pertaining to any child of the parents involved in court proceedings.

Subpoenas are usually drafted so broadly that they encompass every document the school possesses regarding a child. Staff should therefore be mindful when recording notes or any other documents.

Do schools have to produce documents requested in a subpoena?

In almost every case, yes. Failure to provide the documents within the timeframe outlined in the subpoena can have extremely serious consequences e.g. costs orders can be made against the defaulting person or a warrant can be issued for their arrest.

However, there may be legitimate reasons a school cannot comply e.g. more time is required to collate the documents or additional conduct money is requested. In our experience, courts will accept reasonable requests for further time for a school to comply with a subpoena, provided this is communicated to the parties in the proceedings and an appropriate timeframe for production is proposed.

In some cases, it may be appropriate for a school to object to producing documents to comply with a subpoena. Those grounds are likely to be limited to:

• a claim of confidentiality e.g. a concern about a parent inspecting notes between a child and their school counsellor
• an abuse of process e.g. it is not clear what documents need to be produced or the documents are not relevant to the court proceedings.

If a school wishes to object to a subpoena, there is a mandatory form that must be completed detailing the grounds of objection. The school should still produce the requested documents within the required timeframe if this is possible, even if an objection is lodged.

A subpoena is a highly technical legal document. If there is uncertainty about how to comply with a subpoena, or if there are any possible grounds for objection, schools should obtain legal advice as soon as possible given there may be serious consequences for non-compliance.