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U.S. Department of Education: Promoting Educational Excellence for all Americans

Referral to and action by law enforcement and judicial authorities (Sec. 300.535)

Comment: One commenter stated that the requirement in Sec. 300.535(b)(2), which requires a public agency reporting a crime to transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act (FERPA), is beyond the scope of the Act and should be removed.

Discussion: We do not believe that Sec. 300.535(b)(2) goes beyond the scope of the Act as sections 612(a)(8) and 617(c) of the Act direct the Secretary to take appropriate action, in accordance with FERPA, to assure the confidentiality of personally identifiable information contained in records collected or maintained by the Secretary and by SEAs and LEAs. We therefore are not removing this provision. We maintain that the provisions in section 615(k)(6)(B) of the Act, as reflected in Sec. 300.535(b)(2), must be read consistent with the disclosures permitted under FERPA for the education records of all children. Under FERPA, personally identifiable information (such as the child's status as a special education child) can only be released with parental consent, except in certain very limited circumstances. Therefore, the transmission of a child's special education and disciplinary records under paragraph (b)(2) of this section without parental consent is permissible only to the extent that such transmission is permitted under FERPA. Changes: None.