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December 23, 1998

E-MAIL

TO: Hal Howarth<hhowarth@mum.neric.org>

FROM: Robert J. Freeman, Executive Director

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. Howarth:

I have received your letter of November 25. You have requested an advisory opinion
concerning "any potential legal implications" relating to the release of school attendance
registers covering the period of 1931 to 1988 to a historical society.

From my perspective, it is likely that the records in question must be withheld either
in part or in their entirety. In this regard, I offer the following comments.

First, the Freedom of Information Law, the statute that generally governs access to
school district records, 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. Relevant to your
inquiry is §87(2)(a), which pertains to records that "are specifically exempted from disclosure
by state or federal statute." One such statute, as you are aware, is the federal Family
Educational Rights and Privacy Act ("FERPA"; 20 USC §1232g). In my view, that statute
would govern the extent to which the records could be transferred, or essentially disclosed,
to an other entity.

By way of background, 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 person eighteen years or over similarly waives his or her right to confidentiality.

An exception to the rule of confidentiality in FERPA involves "directory information",
which is defined in the regulations of the Department of Education (§99.3) to include:

"....information contained in an education record of a student
which would not generally be considered harmful or an
invasion of privacy if disclosed. It includes, but is not limited
to the student's name, address, telephone listing, date and
place of birth, major field of study, participation in officially
recognized activities and sports, weight and height of
members of athletic teams, dates of attendance, degrees and
awards received, and the most recent previous educational
agency or institution attended."

Prior to disclosing directory information, educational agencies must provide notice to parents
of students or to eligible students in order that they may essentially prohibit any or all of the
items from being disclosed. Specifically, §99.37 of the regulations promulgated pursuant to
FERPA state in relevant part that:

"(a) An educational agency or institution may disclose
directory information if it has given public notice to parents of
students in attendance and eligible students in attendance at
the agency or institution of --

(1) The types of personally identifiable information that the
agency or institution has designated as directory information;

(2) A parent's or eligible student's right to refuse to let the
agency or institution designate any or all of those types of
information about the student as directory information; and

(3) The period of time within which a parent or eligible
student has to notify the agency or institution in writing that
he or she does not want any or all of those types of
information about the student designated as directory
information."

If a school district adopted a policy on directory information, it would have the ability
to disclose items comprising the directory. I note, however, that FERPA became effective
in 1974. Consequently, there would have been no action taken in relation to directory
information prior to the enactment of that statute.

Other than the disclosure of directory information, a district could disclose personally
identifiable information concerning former students, in my opinion, only with the consent of
a student or if is known that a student is deceased.

In an effort to gain an expert opinion on the same issue some time ago, I contacted
the office within the United States Department of Education that oversees the FERPA.
Although it was understood and appreciated that the records in question may at this juncture
be of primarily historical value, it was confirmed that FERPA and the regulations promulgated
thereunder preclude the transfer or public disclosure of the records, except under the
conditions detailed earlier.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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