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FOIL-AO-16598

June 4, 2007

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

Dear

This is in response to the situation that you described concerning your right to obtain the grades in a class taught by a professor at SUNY/Brockport. You specified that you are not interested in grades given to any particular student.

In this regard, 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 (j) of the Law.

Relevant under the circumstances is the initial ground for denial, §87(2)(a), which pertains to records that are "specifically exempted from disclosure by state or federal statute." In this instance, insofar as disclosure of the records in question would or could identify a student or students, I believe that they must be withheld. A statute that exempts records from disclosure is the Family Education Rights and Privacy Act (“FERPA”, 20 U.S.C. section 1232g). In brief, 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. Further, the federal regulations promulgated under FERPA define the phrase "personally identifiable information" to include:

"(a) The student's name;
(b) The name of the student's parents or
other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable" (34 CFR Section 99.3).

Based upon the foregoing, references to students' names or other aspects of records that would make a student's identity easily traceable must in my view be withheld in order to comply with federal law.

In a case dealing with a similar inquiry, the records of test scores were prepared, by class, alphabetically. The school district contended that, even if names of students were deleted, because the lists were maintained alphabetically, the identities of some students might be made known. In determining the issue, the Court ordered that names be deleted from the records and that the records be "scrambled" in order to protect against the possible identification of students prior to disclosure [Kryston v. East Ramapo School District, 77 AD 2d 896 (1980)]. In my view, SUNY/Brockport is required to disclose the grades in a manner in which students' identities are protected. Stated differently, the grades must be disclosed, but any identifying details pertaining to students must, in my view, be withheld. Further, if the students’ grades appear alphabetically, as directed by the Appellate Division, SUNY would be required to scramble the content of the record or records in order that no student could be identified.

I hope that I have been of assistance.

RJF:jm