June 1, 1995



Mr. Michael A. Kless
87 Payne Avenue
Buffalo, NY 14702

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. Kless:

I have received your letter of May 6 and a form used for requesting transcripts from Erie Community College. The form indicates that "Official transcripts are not issued to students" and that a fee of $3.00 is charged for each transcript that is mailed.

You have questioned those statements in terms of compliance with the Personal Privacy Protection Law. In this regard, I offer the following comments.

First, although you characterized Erie Community College as "a division of SUNY (a state agency)", most community colleges are institutions existing within one or more county governments. Therefore, while community colleges may be part of the SUNY system, it is likely they are part of local governments. If that is so, they are not subject to the Personal Privacy Protection Law. For purposes of that statute, the term "agency" is defined in §92(1) to mean:

"any state board, bureau, committee, commission, council, department, public authority, public benefit corporation, division, office or any other governmental entity performing a governmental or proprietary function for the state of New York, except the judiciary or the state legislature or any unit of local government and shall not include offices of district attorneys."

Nevertheless, as an entity of local government, I believe that a community college is clearly an agency as that term is defined in the Freedom of Information Law [see §86(3)], and it has been so held by the State's highest court [Russo v. Nassau County Community College, 81 NY 2d 690 (1993).

Second, as indicated on the form, there are several kinds of transcripts, only one of which is "official." Here I note that the Freedom of Information Law pertains 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. It is my understanding that "official" transcripts are not maintained but rather are prepared. Further, to be official, I believe that transcripts must bear the seal of an institution or some certification that the contents are accurate. The affixation of the seal or inclusion of a certification are actions taken in order to prepare an official transcript, and I believe that the fee of three dollars reflects a charge for a service other than preparing a copy of an existing record. If my assumptions are accurate, the release of an official transcript is not equivalent to a disclosure made under the Freedom of Information Law.

Lastly, you referred to a statement on the form that "No transcript will be released for anyone whose financial obligations to the college have not been met." If the release of a transcript involves the preparation of a record or the performance of a service other than photocopying an existing record, the College could likely refuse to release the transcript if money is owned to the College. On the other hand, if a request is made for an existing record pertaining to a student by the student, I believe that an agency would be required to disclose the record in a manner consistent with the Freedom of Information Law and/or the Family Educational Rights and Privacy Act (20 U.S.C. §1232g), so long as the requisite fees chargeable under those statutes are paid.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Office of the President, Erie Community College