June 30, 1995
Mr. Rafael Robles
P.O. Box 51
Comstock, NY 12821
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 Mr. Robles:
I have received your letter of June 26 and the materials attached to it. You raised questions concerning various kinds of records.
First, you asked whether a named individual attended the Borough of Manhattan Community College during a certain period, and the request was denied on the basis of "Subpart D-Para 99.30." The provision in question is part of the federal regulations (34 CFR Part 99) promulgated pursuant to the federal Family Educational Rights and Privacy Act ("FERPA"), 20 USC §1232g.
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.
However, an exception to the rule of confidentiality in FERPA involves "directory information", which is defined in the regulations of the Department of Education to include:
"....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."
Prior to disclosing directory information, educational agencies must provide notice to parents of students or students in order that they may essentially 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 student, or the students as the case may be.
Second, in response to a request directed to the Division of State Police, you were informed that no records could be located under the name and date of birth of the person that you identified. You asked whether you should appeal. In my view, if an agency cannot locate or does not maintain records, an appeal generally represents an unnecessary step. It is suggested in the alternative that you seek records from the agency that issued a traffic ticket or made an arrest.
Third, you questioned the propriety of a denial of access to records by the Department of Taxation and Finance. In this regard, records sent to the Department by taxpayers concerning payment of taxes, as well as records derived from those submissions, are confidential under §697(e) of the Tax Law.
You referred next to marriage records. As indicated to you in an advisory opinion of April 22, 1993, it was held in Gannett Co. Inc. v. City Clerk's Office, City of Rochester [596 NYS 2d 968 (1993)] that "names of couples to whom marriage licenses have been issued" are accessible. All that I can add is that the decision was unanimously affirmed by the Appellate Division [197 AD 2d 919 (1993)].
You asked whether you can seek records pursuant to the Freedom of Information Law from Puerto Rico and Massachusetts. In this regard, each of the fifty states has enacted a separate and different access to records law of some sort. Whether Puerto Rico, which is a commonwealth, has done so is unknown to me.
You questioned whether a family member can obtain a document from the Kings County Clerk's Office pertaining to a witness at your trial. Without knowledge of the nature of the record, all that I can suggest is that if a record is accessible under law, it should be available to anyone.
You asked where to write when requesting a W-2 form. That would be the Internal Revenue Service, 1111 Constitution Ave., N.W., Washington, DC 20224. I note that W-2 forms maintained by the agency pertaining to persons other than yourself are confidential.
Lastly, since you asked where you can obtain publications with agency addresses, a state agency directory can be purchased by check or money order for $4.50 payable to the "Office of General Services" by writing to:
NYS Office of General Services Directory Sales, 27th Floor Corning Tower Empire State Plaza Albany, NY 12242
I hope that I have been of some assistance.
Robert J. Freeman