October 28, 1996



Mr. David Rylance
Ulster County Community College
Board of Trustees
Stone Ridge, NY 12484

Dear Mr. Rylance:

I appreciate having received a copy of your determination of an appeal rendered under the Freedom of Information Law on October 10. In brief, you upheld a denial of a request for an "incident report on unlawful entry" into a building located at Ulster County Community College. You wrote that the record in question is protected under the provisions of the Family Educational Rights and Privacy Act (FERPA), and that disclosure would constitute an unwarranted invasion of personal privacy.

In this regard, I point out that the FERPA and the regulations promulgated by the United States Department of Education were amended recently. As you may be aware, FERPA pertains to education records identifiable to students. The phrase "education record" is defined in federal regulations to mean records relating to a student that are maintained by an educational agency or institution (34 CFR §99.3). However, the definition specifically excludes:

"Records of a law enforcement unit of an educational agency or institution, but only if education records maintained by the agency or institution are not disclosed to the unit, and the law enforcement records are -

(i) Maintained separately from education records;

(ii) Maintained solely for law enforcement purposes; and

(iii) Disclosed only to law enforcement officials of the same jurisdiction..."

In addition, a recent amendment, §99.8(b)(1) states that:

"Records of a law enforcement unit means those records, files, documents, and other materials that are -

(i) Created by a law enforcement unit;

(ii) Created for a law enforcement purpose; and

(iii) Maintained by the law enforcement unit."

Based on the foregoing, if the report in question could be characterized as a record of a law enforcement unit, the FERPA likely would not serve as a basis for withholding the records. In that case, the record would be subject to whatever rights exist under the Freedom of Information Law.

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.

Section 87(2)(b) permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." If indeed disclosure of a student's identity would result in such an invasion, names or other identifying details may be deleted. However, if, following the deletions, a student's privacy would adequately be protected, I believe that the remainder of the record would be available.

If you would like to discuss the matter, please feel free to contact me. I hope that I have been of assistance.



Robert J. Freeman
Executive Director