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FOIL-AO-16733

 

August 13, 2007

E-MAIL

TO:

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 facts presented in your correspondence.

Dear

As you are aware, I have received your letter. Please accept my apologies for the delay in response. You have asked whether you “may request a particular student’s residence as it is listed in school district records.”

In this regard, first, although the Freedom of Information Law generally governs rights of access to records maintained by entities of state and local government in New York, a federal statute deals with records identifiable to students. Specifically, the Family Educational Rights and Privacy Act (FERPA; 20 USC §1232g) 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. An “eligible student” is defined in the Code of Federal Regulations to mean “student who has reached 18 years of age or is attending an institution of post-secondary education” (34 CFR §99.3).

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.”

The regulations also indicate that a consent to disclose can only be given by the parent of a student under the age of eighteen; students have no rights under FERPA until they reach the age of eighteen.

Lastly, when FERPA does not apply, I believe that an agency could withhold the residence address of a student on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” [Freedom of Information Law, §87(2)(b)].

I hope that I have been of assistance.

RJF:tt