May 28, 1996
Mr. Jackson Leeds
142-24 61st Road
Flushing, NY 11367-1202
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. Leeds:
I have received your letter of May 10 in which you requested an advisory opinion concerning the Freedom of Information Law. You have asked whether the CUNY School of Law at Queens College is required to release redacted transcripts of its graduates. You indicated that the transcripts include the number of credits at graduation as well as several items which in your view may be redacted, such as the "name, address, ID # (AKA Social Security Number)."
In this regard, I offer the following comments.
First, 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 §87(2)(a) through (i) of the Law. Further, the introductory language of §87(2) refers to the ability to withhold "records or portions thereof" that fall within the grounds for denial that follow. As such, there may be elements of a record that may justifiably be withheld, while the remainder must be disclosed.
Second, as you are aware, the Family Educational Rights and Privacy Act (FERPA; 20 U.S.C. §1232g) authorizes an educational agency to withhold "personally identifiable information" pertaining to students, unless the students consent to disclosure. Similarly, §87(2)(b) of the Freedom of Information Law permits an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." From my perspective, CUNY may withhold any aspect of a transcript which if disclosed would be personally identifiable to a student based upon the provisions of both FERPA and §87(2)(b) of the Freedom of Information Law.
If the information sought includes the courses taken as well as the number of credits earned, it is possible in my view that the identification of courses taken would represent an unwarranted invasion of personal privacy or an infringement of FERPA. In Lipsman v. Bass (Supreme Court, New York County, NYLJ, October 1, 1991), it was held that a request for 65 graduate school transcripts pertaining to students enrolled in a particular degree program was properly denied due to the limited number of students and the uniqueness of the program. In short, even after redactions, it would have been possible, due to the small number of students, to identify particular students, even after names and other identifying details were withheld. I note that the 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 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).
While I am unfamiliar with the size of a graduating class at CUNY School of Law, it is possible that an indication of courses taken would render students' identities "easily traceable." If that is so, reference to courses taken could also be withheld. However, assuming that your request does not involve an indication of courses taken but rather only the number of credits earned, it would appear that the information must be disclosed following appropriate deletions.
I hope that I have been of assistance.
Robert J. Freeman
cc: Records Access Officer