February 3, 1994
Mr. Ronald Bethea
2 Bushnell Avenue
Monticello, NY 12701
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. Bethea:
I have received your letter of January 1, which reached this
office on January 6.
You have sought an advisory opinion "about the mis-appropriation
of state agency records to off-campus police
activity." Specifically, in addition to a great deal of detail
concerning your circumstances, you wrote that Sullivan County
Community College released your "student photograph" to a local
police officer "without securing legal authorization by the
soliciting police official or [your]self." Moreover, you contend
that there is "other evidence suggesting that the photographs of
black students are routinely mis-appropriated by Sullivan County
You asked that I "investigate [your] claims on an official
In this regard, the Committee on Open Government is authorized
to provide advice concerning rights of access and the protection of
personal privacy with respect to government records in New York.
The Committee is not empowered to conduct a law enforcement
investigation or compel a government agency to grant or deny access
to records. Nevertheless, I offer the following comments and
First, you referred to possible violations of the Personal
Privacy Protection Law and the federal Family Educational Rights
and Privacy Act (FERPA). It is questionable in my view whether a
community college is subject to the Personal Privacy Protection
Law. That statute is applicable to state agencies only [see
§92(1)] and specifically excludes units of local governments from
its coverage. While community colleges may be part of the State
University system, I believe that they are generally entities of
county government. If they are part of local government rather
than state agencies, they would not be subject to the Personal
Privacy Protection Law.
Second, it is clear in my opinion that a community college is
required to comply with FERPA. In brief, FERPA 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. The federal
regulations promulgated under FERPA 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
(d) A personal identifier, such as the
student's social security number or
(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",
I believe that a photograph of a student, such as an identification
photograph, would constitute an education record.
Although education records identifiable to students may be
disclosed in certain circumstances absent the consent of a
student's parent or the student, as the case may be, based upon the
situation that you described, none of those circumstances would
apparently have been present. One of the conditions in which a
disclosure may be made without such consent is "to comply with a
judicial order or lawfully issued subpoena" [see regulations, 34
CFR §99.31(a)(9)(i)]. According to your letter, the photograph was
not released pursuant either to a court order or a subpoena.
Another exception to the general rule of confidentiality in
the FERPA involves "directory information." Directory information
is defined in the regulations promulgated by the U.S. Department of
Education to include:
"...any 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"
(34 C.F.R. 99.3).
Prior to disclosing directory information, educational agencies
must provide notice to parents of students or eligible students as
the case may be in order that parents or students are given an
option to prohibit any or all of the items from being disclosed.
Therefore, if an educational agency or institution has adopted a
policy on directory information, those items designated as
directory information would be available to any person. If,
however, an educational agency or institution has not adopted a
policy on directory information, it would in my view be prohibited
from disclosing records identifiable to students without the
written consent of the parents of the students, or students who
have reached majority. It would be unlikely in my opinion that
student ID photos or their equivalent would be designated as
If my assumptions and analysis are accurate, disclosure of
students' photographs by the College in the manner that you
described would be inconsistent with FERPA. It is suggested that
you might express your concerns to the agency that oversees FERPA,
the Family Policy Compliance Office, U.S. Department of Education,
400 Maryland Avenue, S.W., Washington, DC 20202-4605. That office
can be reached by phone at (202) 732-1807.
I hope that I have been of some assistance.
Robert J. Freeman