January 21, 1998



Mr. Richard T. Fisher
Waterbury Hall
325 Western Avenue - Box 130
Albany, NY 12203

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. Fisher:

As you are aware, your letter of April 25 addressed to the Attorney General's office has been forwarded to the Committee on Open Government. Please note that the Committee is a unit of the Department of State.

You referred to an alleged failure to comply with your request for records by an official of the State University at Albany and wrote that "[c]onspicously missing from the documents requested, was the transcript of an interrogation conducted by John Murphy, the Director of Judicial Affairs at SUNYA". You have sought my advice in the matter.

In this regard, I offer the following comments.

First, two of the statutes that you cited, §§ 5 USC 552 and 552a, are inapplicable. They are, respectively, the federal Freedom of Information and Privacy Acts, both of which pertain only to federal agencies. However, assuming that a transcript exists, I believe that the Freedom of Information Law would apply, as would the federal Family Educational Rights and Privacy Act (FERPA: 20 U.S.C. §1232g), if the document in question pertains to you in your capacity as a student.

I point out that the Freedom of Information Law applies to existing records, and that §89(3) of that statute states in part that an agency need not create a record in response to a request. Therefore, if no transcript has been prepared, SUNYA would not be obliged to prepare such a record on your behalf.

Second, when records do exist, as a general matter, 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.

If you were the subject of an "interrogation" and were present throughout its course, it appears that a transcript should be available under the Freedom of Information Law, for none of the grounds for denial would appear to apply. Similarly, if the transcript is an "education record" pertaining to you, it appears that it should be available to you pursuant to FERPA. In brief, FERPA 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" 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), such as SUNYA. 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.

In my view, the key issue in terms of FERPA is whether the documentation in which you are interested would constitute an "education record". The federal regulations promulgated pursuant to FERPA state in relevant part that:

"'Education record' [a] the term means 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. [b] The term does not include - [1] Records of instructional, supervisory, and administrative personnel and educational personnel ancillary to those persons that are kept in the sole possession of the maker of the record, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record..." (34 C.F.R. §99.3)

Based on the foregoing, if the transcript exists, pertains solely to you, and if it is an "education record", I believe that you would have the right to review it under the FERPA.

Lastly, when a request for a record is denied, an applicant may appeal the denial pursuant to §89(4) of the Freedom of Information Law. That provision states in relevant part that:

"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the records the reasons for further denial, or provide access to the records sought."

For your information, the person designated to determine appeals at SUNY is Patrick J. Hunt, Associate Vice Chancellor for University Relations. Alternatively, you might contact the person named in your letter to attempt to ascertain whether he is aware of the existence of the record in question.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Stephen Beditz
John Murphy