January 6, 1998

Mr. Thomas B. Fish
P.O. Box 149
Attica, NY 14011-0149

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. Fish:

I have received your letter of December 1 in which you requested a
second opinion concerning your ability to obtain education records from a
school district.

You referred to an opinion rendered on October 28, 1996, in which
reference was made to the Family Educational Rights and Privacy Act
(FERPA, §1232g). In that opinion, it was advised, in brief, that education
records identifiable to students cannot be disclosed without the consent of the
parents of students under the age of eighteen, or the students themselves when
they reach that age. You suggested that I "misunderstood" the matter for I
"didn't take into consideration that the educational records...were admitted
as evidence in [your] trial litigation." You contended that "in order for a
confidential record to be admitted in a trial litigation, that right to
confidentiality must be waived" by the parent or the student. It is your belief
that since there was an apparent waiver, the school district would be required
to disclose education records pertaining to the student.

In this regard, at the time of the preparation of the earlier opinion, I
had no knowledge that the records were used in litigation. Had I been aware
of that factor, it is likely that the opinion would have been more precise. The
regulations promulgated pursuant to the FERPA by the U.S. Department of
Education (34 CFR Part 99) provide specific direction on the matter. When
a parent or student waives confidentiality, §94.30(b) states that:

"The written consent must -

(1) Specify the records that may be disclosed:
(2) State the purpose of the disclosure; and
(3) Identify the party or class of parties to
whom the disclosure may be made."
Education records pertaining to a student might also be disclosed without the
consent of the parent or student pursuant to §99.31(9)(i), which authorizes
disclosure "to comply with a judicial order or lawfully issued subpoena."
Based on the foregoing, if the disclosure is made with the consent of the
parent, the waiver is limited and identifies the persons to whom the disclosure
may be made. In the other situation, the disclosure is made not by means of
a waiver, but rather by means of compulsory legal process.

In short, it does not appear that you would have the right to obtain the
records at issue from an educational agency, except under circumstances
prescribed in the FERPA and the regulations promulgated thereunder.

Notwithstanding the foregoing, as a general matter, when records are
submitted into evidence in a judicial proceeding and become part of the court
record, they are available from the court in which the proceeding was
conducted. I note that the Freedom of Information Law does not apply to the
courts or court records. However, such records are frequently available under
other provisions of law (see e.g., Judiciary Law, §255).

I hope that the foregoing serves to clarify your understanding of the
matter and that I have been of assistance.


Robert J. Freeman
Executive Director