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                                                                                    January 30, 2013



FROM:            Camille S. Jobin-Davis, Assistant 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 Ms.:

This is in response to questions raised in your email of December 27, 2012, regarding the definition of “education record” in the Family Educational Rights and Privacy Act (FERPA), and the time limits for responding to requests for copies of records. 

As set forth in the regulations that accompany FERPA (34 CFR 99.3), “education records” includes those records that are as follows:

“(a)(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.
(b) The term does not include:
(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.
(2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of § 99.8.
(3)(i) Records relating to an individual who is employed by an educational agency or institution, that:
(A) Are made and maintained in the normal course of business;
(B) Relate exclusively to the individual in that individual's capacity as an employee; and
(C) Are not available for use for any other purpose.
(ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.
(4) Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are:
(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;
(ii) Made, maintained, or used only in connection with treatment of the student; and
(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, “treatment” does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution; and
(5) Records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual's attendance as a student.
(6) Grades on peer-graded papers before they are collected and recorded by a teacher.  (Authority: 20 U.S.C. 1232g(a)(4)).”

This will confirm that it is our understanding that written reports, memos, emails and telephone records are likely to be “educational records” as defined by FERPA, insofar as they are directly related to a particular student.

This will also confirm that if a record is clearly required to be provided to the applicant, and is readily available, it is our opinion that there would be no basis to delay access.  See the explanation at the following link: http://www.dos.ny.gov/coog/explanation.html.

I hope that this is helpful.