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FOIL-AO-17484

January 2, 2009

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

            As you are aware, I have received your letter concerning students’ rights of access under the Family Educational Rights and Privacy Act (“FERPA”). Please accept my apologies for the delay in response. Your specific question involves a student’s right to gain access to records, particularly those kept by a financial aid office, such as parents’ tax returns.

            In this regard, as a general matter, 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, an "eligible student" enjoys rights of access to the records pertaining to him/her.

            Although the definition of the phrase education records appearing in §99.3 of the federal regulations contains certain exclusions, having reviewed them, I do not believe that any would serve to enable an educational agency or institution to withhold the kinds of records that you described from an eligible student.

            If you would like to discuss the matter, as always, I am at your service.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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