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FOI-AO-18998

BY EMAIL

From:   Jobin-Davis, Camille (DOS)
Sent:    Wednesday, December 19, 2012 3:02 PM
To:      
Subject: FOIL and FERPA waiver

Dear Ms. ,

In response to your email, I have reviewed regulations that accompany the Family Education Rights and Privacy Act (FERPA).  This will confirm that the common application form is in keeping with such regulations, in that a student has authority to waive rights of access to letters of recommendation.

 See section 99.12, below.  “§ 99.12 What limitations exist on the right to inspect and review records?

(3) Confidential letters and confidential statements of recommendation placed in the student's
education records after January 1, 1975, if:
(i) The student has waived his or her right to inspect and review those letters and statements; and
(ii) Those letters and statements are related to the student's:
(A) Admission to an educational institution;
(B) Application for employment; or
(C) Receipt of an honor or honorary recognition.
(c)(1) A waiver under paragraph (b)(3)(i) of this section is valid only if:

(i) The educational agency or institution does not require the waiver as a condition for admission to or receipt of a service or benefit from the agency or institution; and
(ii) The waiver is made in writing and signed by the student, regardless of age.
(2) If a student has waived his or her rights under paragraph (b)(3)(i) of this 12
section, the educational institution shall:

(i) Give the student, on request, the names of the individuals who provided the letters and
statements of recommendation; and
(ii) Use the letters and statements of recommendation only for the purpose for which they were
intended.
(3)(i) A waiver under paragraph (b)(3)(i) of this section may be revoked with respect to any actions occurring after the revocation.

(ii) A revocation under paragraph (c)(3)(i) of this section must be in writing.”
(Authority: 20 U.S.C. 1232g(a)(1) (A), (B), (C), and (D)) The foregoing suggests that a student of any age may waive his or her rights of access to “confidential letters and confidential statements of recommendation”.  It is unclear, however, whether the authority to waive rights of access to the records at issue belongs exclusively to the student. Since the regulations include no direction concerning that issue, it appears that a parent of a minor student has rights of access to the education records pertaining to the student, even if that student has waived his
or her rights.

 

Camille S. Jobin-Davis, Esq.
Assistant Director
NYS Committee on Open Government
Department of State
99 Washington Ave, Suite 650
Albany NY 12231

Tel: 518-474-2518
Fax: 518-474-1927
camille.jobin-davis@dos.ny.gov
www.dos.ny.gov/coog