June 13, 1995
Ms. Theresa C. Lonergan
27 Algonkin Street
Ticonderoga, NY 12883
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 Ms. Lonergan:
I have received your letter of May 21 and appreciate your kind remarks.
You have questioned the extent to which a public employer may verify that an applicant for employment has earned a certain degree from a specified college or obtain a transcript. In this regard, I would conjecture that a public employer could, as a prerequisite to hiring an individual, require the individual to contact a college or university for the purpose of having a certified transcript or other proof sent directly to the employer. Alternatively, it is possible in some instances that an employer or even the general public could acquire some of the information in question.
Potentially relevant is a federal law, the Family Educational Rights and Privacy Act ("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, an eligible student, similarly waives his or her right to confidentiality.
An 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.
Assuming that the employer has acquired verification that the applicant holds a certain degree, you asked whether the public has the right to obtain a record so indicating. For reasons offered in the materials previously sent to you, if the acquisition of a degree is a condition of employment, a record indicating such a condition has been met must be disclosed if the person has been hired as a public employee.
Lastly, while the names of those actually employed by an agency are clearly public, I point out that §89(7) of the Freedom of Information Law states in part that the name of an applicant for appointment to public employment need not be disclosed.
I hope that I have been of some assistance.
Robert J. Freeman