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Decision No. 12,559

Applications of a CHILD WITH A HANDICAPPING CONDITION, by her parents, from action of the Board of Education of the Pine Bush Central School District regarding maintenance of records.

Decision No. 12,559

(August 7, 1991)

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

SOBOL, Commissioner.--Petitioners seek an order restricting access to and maintenance of education records by counsel for school districts. Petitioners commenced three separate appeals which I have consolidated for decision. The appeals must be dismissed.

Petitioners are parents of a child with a handicapping condition who receives home instruction in respondent's district. Between 1988 and 1990, respondent held two impartial hearings concerning petitioners' daughter and scheduled two others which were subsequently discontinued upon petitioners' withdrawal of their hearing requests.

In preparation for an impartial hearing and on other occasions, petitioners have requested and reviewed their daughter's special education file. While reviewing their daughter's records, petitioners claim they were told that some original documents which belonged in the file were in the possession of respondent's counsel. Petitioners allege that respondent failed to indicate on the file's access log that documents had been removed and that its counsel had reviewed the file. The petitions do not specify any dates or times when these alleged incidents occurred and do not identify the individual who allegedly told petitioners that respondent's counsel possessed the documents missing from the file. Petitioners contend that respondent violated the Family Educational Rights and Privacy Act (20 USC '1232g) and a regulation promulgated under the Individuals with Disabilities Education Act (34 CFR '300.563) by permitting its counsel to remove records from their daughter's file and failing to record that the counsel had accessed the files.

Respondent denies that the school attorney removed documents from the student's file and alleges that petitioners have never complained to the custodian of the file or the chairperson on Special Education concerning missing documents. Respondent further alleges that any person who has accessed the file has signed the access log. Respondent raises several procedural objections and contends that the petition must be dismissed as untimely.

Petitioners do not appeal from a hearing officer's decision pursuant Education Law '4404. Rather, these appeals are brought pursuant to Education Law '310 which permits an "aggrieved" party to petition for relief within thirty days from any "official act or decision of any officer, school authorities, or meetings" concerning any matter under the Education Law [Education Law '310(7), 8 NYCRR '275.16]. Because the petitions fail to specify any date or time when the incidents complained of allegedly occurred, the appeals are dismissed as untimely.

Even if the appeals were timely, they would be dismissed on their merits because petitioners have failed to prove that documents were removed from their daughter's file or that respondent failed to maintain an accurate access log with regard to the file. The petitions contain only vague, unsubstantiated and conclusory statements which do not establish the facts upon which they seek relief (8 NYCRR '275.10, Appeal of Pickreign, 28 Ed Dept Rep 163, 165; Appeal of Toftegaard, 25 id. 159, 161; Appeal of Keiling, 25 id., 122, 124). Petitioners are instructed that fragmentation of the appeal process by simultaneously bringing three separate petitions arising from the same conduct only causes unnecessary delay and should be avoided (Applications of a Child with a Handicapping Condition, 29 Ed Dept Rep 486; Matter of Sten and Helen E., 17 id. 134).