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December 16, 1998

Mr. Vincent Pisacane
Box 195
Hopedale, MA 01747

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, unless otherwise indicated.

Dear Mr. Pisacane:

As you are aware, I have received your letter of November 17 and related materials.
By way of background, your daughter, a student at Hunter College, sought a variety of
records pertaining to her grade appeal. Although some of the records or portions thereof
were initially withheld, it is my understanding that College officials have determined to permit
your daughter to inspect the records sought in their entirety. You indicated by phone,
however, that the College will not permit your daughter to obtain copies of the records, and
you have questioned its ability to refuse her request for copies.

In this regard, I believe that two statutes are pertinent to the matter. The first is a
federal statute, the Family Educational Rights and Privacy Act ("FERPA"; 20 USC §1232g).
The second is the New York Freedom of Information Law.

In brief, FERPA 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 CUNY. 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, your daughter is
an "eligible student" who enjoys rights of access to the records at issue. For reasons that we
have discussed, and which were discussed with attorneys for the College, FERPA grants
rights of access to parents or eligible students that exceed those conferred by the Freedom of
Information Law.

As suggested by College officials, while FERPA provides a right to inspect education
records, it does not provide the right to obtain copies. Nevertheless, in my view, because the
materials constitute agency records that fall within the scope of the Freedom of Information
Law, the College is obliged to prepare copies of the records upon payment of the appropriate
fees.

The City University of New York, including its component colleges, clearly
constitutes an "agency" as that term is defined in §86(3) of the Freedom of Information Law.
Additionally, §86(4) of that statute 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 your daughter requested constitute agency records.
While they are "education records" subject only to inspection under FERPA, they are also
"records" subject to the requirements of the Freedom of Information Law, which states that
accessible records must be made available for inspection and copying [§87(2)] and that an
agency is required to make copies of those records upon payment of a fee [§89(3)]. I note
that §87(1)(b)(iii) of that statute states that an agency cannot charge in excess of twenty-five
cents per photocopy. I point out, too, that the regulations promulgated by the Committee on
Open Government, which have the force and effect of law, state in relevant part that "[a]ny
conflicts among laws governing public access to records shall be construed in favor of the
widest possible availability of public records" [21 NYCRR §1401.1(d)].

In sum, although FERPA does not confer a right to obtain copies of the records
sought by your daughter, I believe that the Freedom of Information Law requires that copies
be made available upon payment of the requisite fee.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt
cc: Catherine Pisacane
Linda T. Chin
Tracy Flaum