Decision No. 12,555

(August 5, 1991)

Plunkett & Jaffe, P.C., attorneys for respondent, Adele Waine, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks an opinion of the Commissioner that transcripts of impartial hearings must be maintained as education records in student files. Petitioner commenced two separate appeals which I have consolidated for decision. The appeals must be dismissed.

Petitioner is the parent of two handicapped children in respondent's district. Respondent has held impartial hearings for both of petitioner's children. In each of these hearings, a transcribed record was made and a copy provided at respondent's expense to petitioner and the impartial hearing officer. Respondent maintains a third copy of each transcript in a litigation file in its counsel's office. Petitioner objected to respondent's counsel maintaining a copy and requested that the district instead place the third copy in the student's file at school. Respondent refused but offered to place petitioner's copy of each transcript in her children's school files. Petitioner declined the district's offer and commenced these appeals.

Petitioner contends that the hearing transcripts are education records which should be maintained in her children's school files and made subject to the confidentiality requirements of state and federal regulations. Petitioner challenges respondent's practice of having its counsel maintain hearing transcripts separate from the student's education records and requests an opinion regarding the manner in which these transcripts should be transferred in the event the district retains different counsel in the future.

Respondent contends that hearing transcripts are not per se education records and are properly maintained as litigation records with its legal counsel. Respondent has no objection to placing petitioner's copies of the transcripts in her children's files if so requested and maintaining them as education records. Respondent also contends that the petitions must be dismissed because the Commissioner lacks jurisdiction to decide matters under the Family Educational Rights and Privacy Act and does not issue advisory opinions. Respondent further contends that its compliance with 8 NYCRR '200.5(c)(2) in providing petitioner with a written transcript of each hearing concerning her children satisfies its legal obligation regarding these records.

In order to decide the issue raised by petitioner, the term "education records" must be defined. Both state and federal regulations [see, 8 NYCRR '200.5(f); 34 CFR ''300.570-300.576] require school districts to permit inspection and review by parents of any education record relating to their children. In addition, school districts must keep a record of anyone other than parents and authorized district employees, who obtain access to education records collected, maintained or used by the district. Special education regulations do not identify transcripts of impartial hearings as education records and, in fact, do not independently define "education records," but rather, incorporate by reference the definition in regulations (34 CFR Part 99) implementing the Family Educational Rights and Privacy Act (20 USC '1232[g]). The regulations also specifically provide for an administrative hearing upon a parent's request to challenge the content of education records to insure that the information "is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child" (34 CFR '300.568). This administrative process is not unique to special education and is available to all parents under the Family Educational Rights and Privacy Act (34 CFR '99.21).

Because petitioner challenges the content of her children's education records in contending that hearing transcripts have been improperly excluded therefrom, I must conclude that the appropriate administrative procedure available to petitioner is a hearing at the school district level pursuant to the Family Educational Rights and Privacy Act (20 USC '1232g; 34 CFR '99.22). If a complaint persists regarding the hearing process, it may be addressed to the Family Policy and Regulations Office, U.S. Department of Education, Washington, D.C. 20202 (34 CFR '99.63). An appeal pursuant to Education Law '310 is not available for purposes of such a hearing or for review of the hearing decision (Appeal of a Student Previously Identified as Having a Handicapping Condition, 24 Ed Dept Rep 247).

Although petitioner invokes special education requirements, the issue presented here goes well beyond enforcement of Commissioner's Regulation '200.5(f) and requires an interpretation of the Family Educational Rights and Privacy Act having general application to a wide range of litigation-related documents regarding students. Because authority to enforce the Family Educational Rights and Privacy Act rests solely with the Secretary of the U.S. Department of Education (20 USC ''1232g[f] and [g]; 34 CFR ''99.60-99.67), I am constrained to dismiss the petitions (Appeal of Praino, 30 Ed Dept Rep 260; Matter of Tortorello, 29 id. 306; Appeal of Richardson, 29 id. 70; Application of a Child with a Handicapping Condition, 27 id. 290; Appeal of a Child with a Handicapping Condition, 27 id. 19).

THE APPEALS ARE DISMISSED.

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