January 6, 1993
Mr. David Davis
3840 Greystone Avenue
Bronx, N.Y. 10463
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 Mr. Davis:
I have received your letter of December 21, as well as the materials attached to it.
You have sought an advisory opinion concerning your right to "inspect and copy all first year student answers to the October 26, Midterm, Responsibility for Injurous Conduct" administered by the City University of New York Law School. You wrote that there is "no privacy problem", for "the students are given a four digit exam number".
In this regard, I offer the following comments.
First, 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 section 87(2)(a) through (i) of the Law.
Second, in my view, two of the grounds for denial are relevant in ascertaining rights of access.
Significant in my view is the first ground for denial, §87(2)(a), which pertains to records that are "specifically exempted from disclosure by state or federal statute". One such statute is the Family Education Rights and Privacy Act (20 U.S.C. section 1232g), which is commonly known as the "Buckley Amendment". In brief, the Buckley Amendment applies to all educational agencies or institutions that participate in grant programs administered by the United States Department of Education. As such, the Buckley Amendment 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 the Buckley Amendment 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 definition of "personally identifiable information", the absence of a name or the use of a four digit number on test papers do not necessarily remove the records in question from the protection accorded by the Buckley Amendment, for the definition includes "[o]ther information that would make the student's identity easily traceable". If the test answers were handwritten, it is possible that a review of the test papers could enable an individual to identify students' papers by means of their handwriting, which presumably is unique in every instance. If that is so, notwithstanding the absence of students' names, it would appear that the Law School would be precluded from disclosing the records in question.
Also relevant is §87(2)(h) of the Freedom of Information Law, which enables agencies to withhold records that "are examination questions or answers which are requested prior to the final administration of such questions". Therefore, if there is an intent or possibility that the questions used in the examination that is the subject of your inquiry will be used in the future, I believe that the questions, as well as the students' answers, could be withheld. Disclosure of the questions or the answers in that circumstance would diminish or perhaps nullify the utility or efficacy of the exam.
In short, if disclosure of examination papers and the handwriting appearing on them "would make a student's identity easily traceable", or if the questions on the exam will be given in the future, I believe that the records would fall beyond the scope of rights conferred by the Freedom of Information Law.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Dave Fields, Records Access Officer
Daphna H. Mitchell