November 14, 1997

Ms. Roberta Stellato
5 Roslyn Street
Ellenville, NY 12428

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. Stellato:

I have received your correspondence of October 20. You have sought
assistance concerning a denial of access by the Ellenville Central School
District to a report prepared following a complaint involving alleged
mistreatment of your child. The District denied access pursuant to the
Freedom of Information Law on the ground that disclosure would result in an
unwarranted invasion of personal privacy and because it consists of intra-agency material.

If only the Freedom of Information Law governed rights of access, I
would agree in great measure with the District's response. However, it
appears that a different statute would likely require the District to disclose the
report to you.

Specifically, the Family Educational Rights and Privacy Act
("FERPA"; 20 U.S.C. §1232g), in brief, is applicable to all educational
agencies or institutions that participate in federal educational funding
programs. As such, it applies to virtually all public educational institutions.
In general, FERPA confers rights of access to "education records" pertaining
to a student under the age of eighteen to the parents of the student or to an
"eligible student." The federal regulations define the phrase "eligible student"
to mean "a student who has reached 18 years of age or is attending an
institution of postsecondary education" (see 34 C.F.R. §99.3). Concurrently,
it generally requires that education records be kept confidential, unless the
parents or eligible students, as the case may be, waive the right to
confidentiality. I note that the regulations promulgated by the U.S.
Department of Education define the term "education record" broadly to
include "those records that are - [1] Directly related to a student; and [2]
Maintained by an educational agency or institution or by a party acting for the
agency or institution..." Based on the foregoing, insofar as the District
maintains records pertaining to your child, I believe that they would
constitute "education records" available to you pursuant to rights conferred

I note that the federal regulations exclude from the scope of education

"Records relating to an individual who is
employed by an educational agency or
institution, that -
(A) Are made and maintained in the normal
course of business..."

If the report at issue pertains to the treatment of your child, it would not
appear to be a personnel record primarily relating to an employee that is made
and maintained in the ordinary course of business. Again, if that is so, and if
the report pertains to your child, it appears that it would be available under

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Peter J. Ferrara
Linda Geiselhart