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November 10, 1999

FOIL-AO-11808

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

I have received your letter of September 30, as well as the materials attached to it.
You have sought an opinion concerning rights of access under the Freedom of Information
Law or the Family Educational Rights and Privacy Act ("FERPA") to "the records of the
New York State School Music Association ("NYSSMA") containing All-State Evaluations
and Proficiency List rankings..." You wrote that neither the "All-State Recommendations"
nor the "proficiency lists" are made available to parents or students.

In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to agency records, and §86(3) of
that statute defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one or
more municipalities thereof, except the judiciary or the state
legislature."

Based on the foregoing, as a general matter, the Freedom of Information Law includes
entities of state and local government within its coverage. NYSSMA, according to the
materials that you forwarded, as well as telephone conversations with John Krestic, its 2nd
Vice President, and Jerome Ehrlich, its counsel, is a private, not-for-profit corporation. It
does not serve public schools exclusively, for its members include both public and private
schools. In short, I do not believe that it is an "agency" that falls within the framework of the
Freedom of Information Law.

Second, a school district, a governmental entity, is clearly an "agency" subject to the
requirements of that statute. Again, that law pertains to agency records, and §86(4) defines
the term "record" expansively to include:

"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."

In view of the definition, an agency record includes not only materials kept by a school
district, for example, but also materials kept for a school district. The question, therefore, is
whether the materials in which you are interested are kept by NYSSMA for a school district.
If they are, I believe that they would constitute "agency records" for purposes of the Freedom
of Information Law and "education records" accessible to parents of students pursuant to
FERPA and the regulations promulgated thereunder by the U.S. Department of Education (34
CFR §99.3).

Having discussed the matter at some length with Mr. Krestic, he indicated that the
records NYSSMA prepares are prepared for its own purposes and that they are never agency
records, even though some records or portions of records are transmitted to students and
teachers. With respect to the form in which you are interested, he indicated that the top
portion consisting of an adjudicator's comments and evaluation of a student's performance is
given to the student and his or her teacher. Mr. Krestic specified, however, that the bottom
portion of the form ("All-State Recommendation") represents an additional step in
considering a student and is used internally by NYSSMA in combination with a "proficiency
list", the latter of which was characterized as confidential and is not disclosed to either a
student or any school official or teacher. If that is so, the records at issue would not be kept
or held for an agency; rather, as I understand the matter, they are used internally by and for
NYSSMA alone.

If my interpretation of the matter is accurate, the records of your interest would not be
agency records or education records and would fall beyond the scope of both the Freedom of
Information Law and FERPA.

I hope that the foregoing serves to clarify your understanding of the matter and that I
have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm
cc: John Krestic
Jerome Ehrlich