Decision No. 12,735

(July 2, 1992)

Raymond G. Kruse, P.C., attorney for respondent, Raymond G. Kruse,

Esq., of counsel

SOBOL, Commissioner.--Petitioner brings these appeals on behalf of her two children who have been identified as having handicapping conditions. In both appeals petitioner alleges that transcripts of impartial hearings held on each of her children are in the possession of the school district's attorney. Consequently, she claims that her children's educational records at the school district are incomplete. Petitioner also claims that, because the attorney does not maintain access sheets with the transcripts, she is concerned about possible violations of confidentiality which may occur at the attorney's office. Because the two appeals raise identical issues, I have consolidated them for decision. The appeals must be dismissed.

As part of its answer in each appeal, respondent submits the affidavit of its attorney stating that the transcripts are in the office of the superintendent of schools and not in the attorney's office. Petitioner has not submitted any evidence refuting the attorney's sworn statement.

With respect to the issues of confidentiality, I note that petitioner does not allege that any improper disclosure has actually occurred, but merely speculates as to the potential for such disclosure by the school's attorney. In any event, a determination on whether a transcript of a hearing is an educational record, subject to requirements of confidentiality, requires an interpretation of the Family Rights and Privacy Act (20 USC '1232g, 34 CFR '99.22)(Appeals of Children with Handicapping Conditions, 31 Ed Dept Rep 26) which the U.S. Department of Education has sole authority to enforce (20 USC ''1232g[f] and [g]; 34 CFR ''99.60-99.67). Thus, had petitioner established that the transcripts were held by the school district's attorney, I would be constrained to dismiss the appeals.

THE APPEALS ARE DISMISSED.

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