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April 2, 1997

 

 

 

Mr. Henry J. Bartosik
11 Bevier Lane
Ellenville, NY 12428

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Bartosik:

I have received a copy of your letter of March 13 addressed to Dr. Richard Grant, Assistant Principal of a public school in New York City. In the letter, you requested "graduation rosters" or class lists for the years 1945 to 1955 and indicated that you would forward a copy of the letter to me "for [my] interpretation of the statutes."

In this regard, as you are aware, the statute that generally pertains to access to records maintained by governmental entities in New York is the State's Freedom of Information Law. In brief, that statute is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

It is possible, however, that the governing statute in the context of your request is the federal Family Educational Rights and Privacy Act ("FERPA"; 20 U.S.C. §1232g). FERPA applies to all educational agencies or institutions that participate in grant programs administered by the United States Department of Education. As such, FERPA includes within its scope virtually all public educational institutions and many private educational institutions. The focal point of the Act is the protection of privacy of students. It provides, in general, that any "education record," a term that is broadly defined, that is personally identifiable to a particular student or students is confidential, unless the parents of students under the age of eighteen waive their right to confidentiality, or unless a student eighteen years or over similarly waives his or her right to confidentiality.

While the records in question relate to students who attended the school prior to the enactment of FERPA and may have primarily historical value at this juncture, I have discussed the issue in the past with officials of the United States Department of Education, which oversees and promulgates regulations concerning FERPA. In short, I was advised that FERPA essentially prohibits disclosure of the kinds of records at issue without the prior consent of the persons to whom the records pertain, unless it can be shown that the subject of a record is deceased.

I note that although the federal regulations define the phrase "education records" broadly, the definition excludes "Records that only contain information about an individual after or she is no longer a student at that agency or institution." Therefore, if, for example, a list or similar document has been prepared concerning alumni and their activities, that kind of material would not be subject to FERPA, and there would be no prohibition concerning disclosure. In that event, the Freedom of Information Law would apply.

I hope that the foregoing serves to enhance your understanding of applicable law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Dr. Richard Grant