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May 29, 1997

 

 

 

 

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

I have received your letter of May 1, as well as related
correspondence. Please accept my apologies for the delay in
response.

You have sought an advisory opinion concerning a request
directed to the State University at Albany [SUNY] for copies of
"records or portions thereof pertaining to all [your] foreign
degree and transcripts prior to those of SUNY." You referred
specifically to records prepared for the University of Ivory Coast
that were submitted with your SUNY application. In a response to
the request by Nancy L. Smith, Interim Associate Registrar,
reference was made to the federal Family Educational Rights and
Privacy Act (FERPA), and you were informed that under FERPA, "you
have a right to view your student file and make notes from the
information contained in your file, but you may not make copies of
the materials contained in your file." Ms. Smith added that "FERPA
provides a right to view, but not an automatic right to copies."

From my perspective, while FERPA may provide only the right to
inspect the records in question, other statutes, specifically the
New York Freedom of Information Law and the Personal Privacy
Protection Law, require SUNY to provide copies upon payment of the
requisite fee. In this regard, I offer the following comments.

By way of background, FERPA, in brief, is applicable to all
educational agencies or institutions that participate in federal
educational funding programs. As such, it applies to virtually all
public educational institutions. In general, FERPA confers rights
of access to "education records" pertaining to a student under the
age of eighteen to the parents of the student or to an "eligible
student." The federal regulations define the phrase "eligible
student" to mean "a student who has reached 18 years of age or is
attending an institution of postsecondary education" (see 34 C.F.R.
§99.3), such as SUNY. Concurrently, it generally requires that
education records be kept confidential, unless the parents or
eligible students, as the case may be, waive the right to
confidentiality. I note that the regulations promulgated by the
U.S. Department of Education define the term "education record"
broadly to include "those records that are - [1] Directly related
to a student; and [2] Maintained by an educational agency or
institution or by a party acting for the agency or institution..."
Based on the foregoing, insofar as SUNY maintains the records
sought, I believe that they would constitute "education records"
subject to rights conferred by FERPA.

I am in general agreement with Ms. Smith's statement that
FERPA provides only a right to review records. Reference to copies
of records appears in §99.10(d) of the federal regulations, which
states that "The educational agency or institution shall give the
parent or eligible student a copy of the records if failure to do
so would effectively prevent the parent or student from exercising
the right to inspect and review the records."

Separate from the FERPA is the Freedom of Information Law.
That statute pertains to agency records, and §86(4) defines the
term "record" to mean:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based on the definition, the materials that you requested,
irrespective of their origin, would constitute agency records if
they are maintained by SUNY.

As a general matter, the Freedom of Information Law 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. In my view, none of
the grounds for denial of access could be asserted to withhold the
records from you. I note, too, that §89(2)(c)(iii) specifies that,
unless there is a basis for withholding, an agency must disclose
"when upon presenting reasonable proof if identity, a person seeks
access to records pertaining to him."

Also relevant is the Personal Privacy Protection Law, which
generally requires that state agencies disclose records about data
subjects to those persons. A "data subject" is "any natural person
about whom personal information has been collected by an agency"
[Personal Privacy Protection Law, §92(3)]. "Personal information"
is defined to mean "any information concerning a data subject
which, because of name,number, symbol, mark or other identifier,
can be used to identify that data subject" [§92(7)]. For purposes
of the Personal Privacy Protection Law, the term "record" is
defined to mean "any item, collection or grouping of personal
information about a data subject which is maintained and is
retrievable by use of the name or other identifier of the data
subject" [§92(9)].

Under §95 of the Personal Privacy Protection Law, a data
subject has the right to obtain from a state agency records
pertaining to him or her, unless the records sought fall within the
scope of exceptions appearing in subdivisions (5), (6) or (7) of
that section. As I understand your request, none of those
exceptions would apply.

Lastly, when records are accessible under the Freedom of
Information Law, §87(2) requires that they be made available for
inspection and copying. Moreover, §89(3) requires that an agency
prepare copies of records upon payment of the appropriate fee.
Under §87(1)(b)(iii), an agency may charge up to twenty-five cents
per photocopy. Similarly, §95(1)(c) of the Personal Privacy
Protection Law requires that copies of records be made available to
data subjects in accordance with "the fee prescribed by section
eighty-seven of this chapter", which is the Freedom of Information
Law.

In sum, while FERPA does not appear to confer a right to
obtain copies of the records that you have requested, I believe
that the other statutes considered in the preceding commentary
require that copies be made available to you upon payment of the
proper fee.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Nancy L. Smith