New York State Court of Claims

New York State Court of Claims

CZYNSKI v. THE STATE OF NEW YORK, #2002-028-057, Claim No. 104234, Motion No. M-65264


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
TOBIN & DEMPF, LLPBY: Raul A. Tabora, Jr., Esq.
Defendant's attorney:
BY: Dennis M. Acton, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 8, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion to compel disclosure and for various protective orders to ensure anonymity to certain student witnesses and nondisclosure of discovery documents:

  1. Notice of Motion and Supporting Affirmation of Raul A. Tabora, Jr., Esq. filed
May 24, 2002 (Tabora Affirmation).

  1. Affidavit in Opposition of Assistant Attorney General Dennis M. Acton, filed July 11, 2002 (Acton Affidavit)
  1. Letter Reply of Megan M. Malone received July 18, 2002 (Malone Reply)[1].
  1. Filed papers: Claim, filed May 7, 2001.
The parties were previously before the Court on Claimant's motion for a sealing order pursuant to 22 NYCRR § 216.1, which was denied (Czynski v State of New York, Sise, J., August 8, 2001, Claim No. 104234, M-63540).

The Court begins with that branch of the motion which seeks to compel production of writings which Defendant has resisted on the basis of a privilege pursuant to 20 USC §1232 g, commonly referred to as the Family Educational Rights and Privacy Act (FERPA or the Act).

FERPA is also sometimes referred to as the Buckley amendment, named for its author, United States Senator James Buckley (see, Rhode Island Bar Journal, Privacy in the World of Education: What hath James Buckley Wrought?, 46 RI Bar Jnl 9, Nicholas Trott Long). FERPA is intended to assure parents of students, and students themselves if they are over the age of 18 or attending an institution or post-secondary education, access to their education records and to protect such individuals' rights to privacy by limiting the transferability (and disclosure) of their records without their consent (see, Rios v Read, 73 FRD 589, 597; see also, Klein Independent School District v Mattox, 830 F2d 576, 579 (5th Cir 1987), cert denied, 485 US 1008 ). In order to achieve compliance, the Act directs the Federal Government to withhold funds from educational institutions which receive federal financial assistance and which permit disclosure of "education records" without complying with its provisions (Culbert v City of New York, 254 AD2d 385, 387; Owasso Independent School District No. I-011 v Falvo, 534 US 426)[2].

However, FERPA does not create a privilege against disclosure of student records (see, Rios v Read, 73 FRD 589, 598; Reeg v Fetzer, 78 FRD 34). Rather, the statutory scheme permits disclosure upon Court order (20 USC § 1232g) and places a burden upon the university to notify parents and students in advance of compliance with a release order (Sauerhof v City of New York, 108 Misc 2d 805, 806; see, 20 USC § 1232g [b][2]; see also, Matter of Terry D., 81 NY2d 1042, 1047, Smith, J., dissenting [FERPA does not prohibit enforcement of the subpoena, compliance with the Act is a matter for the school, not the authority issuing the subpoena]).
If on the other hand the materials sought are not "education records" then FERPA is inapplicable (Culbert v City of New York, supra, 254 AD2d 385). Either way, this Court must determine whether the materials are discoverable (See, generally, CPLR § 3101(a) [full disclosure of all evidence material and necessary regardless of the burden of proof]), and if discoverable, given the potential for confidential information, fashion an appropriate order (see, i.e., Rios v Read, supra, 73 FRD 589 [no further disclosure, redaction and destruction of records]; Zaal v State of Maryland, 326 MD 54 [controlled access by defense counsel]; Chazin v Lieberman, 129 FRD 97
in view of the policies underlying FERPA the court would impose limitations on the subpoenas]; Culbert v City of New York, supra, 254 AD2d 385, 388).

The Court's first inquiry is whether the materials identified in response to Claimant's

demands are "education records" subject to FERPA. The phrase "education records" is defined, under the Act, as "records, files, documents, and other materials" containing information directly related to a student, which "are maintained by an educational agency or institution or by a person acting for such agency or institution." (20 USC § 1232g [a][4][A]). However, the term "student" does not include one who has not been in attendance at an educational agency or institute.(see, 34 CFR § 99.3; Lawson v Edwardsburg Public School, 1990 WL 359811, W.D.Mich.,1990 [unpublished opn at 1). Moreover, records relating to an individual who is employed by an educational agency or institution (see, 20 USC § 1232g [a][4][b][iii]) and who is not a student employee (34 CFR §99.3) by definition are not "education records" (see, Brouillet v Cowles Pub. Co., 114 Wash 2d 788 [release of records permitted as FERPA protects student records not teacher records]; Klein Indep. School District v Mattox, 830 F 2d 576 (5th Cir 1987), cert denied, 485 US 1008). Where, as here, the five documents which Defendant has withheld each concern Professor David White, the Court does not agree with Defendant's unsubstantiated statement that "[there is no question but that the the statutory definition" (Acton Affidavit ¶ 6). Rather, the five documents are records relating to an employee and hence not "education records" within the meaning of FERPA.

The Court now turns to evaluate the demands under the CPLR, which as already noted provides for full disclosure of all evidence material and necessary (CPLR § 3101). CPLR

§ 3103 authorizes the Court at any time on its own initiative, or on motion of any party to make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. "Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person" (CPLR § 3103[a]; see also, A-Frame Inc. v Concord Pools Ltd., 289 AD2d 921, 922). The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court (see, Matter of U.S. Pioneer Elec. Corp. [Nikko Elec. Corp.], 47 NY2d 914, 916). In the first instance, and notwithstanding Defendant's assertion to the contrary, the at-issue documents may relate to the issue of notice and or lead to further discoverable evidence. Since Claimant will be required to show notice the materials are discoverable (see, Egle v Maplebrook School, 254 AD2d 388). The same holds true for the surveys submitted regarding Professor White. Notwithstanding the foregoing analysis, given the potential for the release of protected confidential information, the Court directs that the materials be delivered to the Court for an in camera inspection prior to disclosure (see, Culbert v City of New York, supra).


In addition to the discovery requests, Claimant has moved for an order designating the identities of the potential student witness and the Claimant himself as "John or Jane Doe", as appropriate. Claimant's suggestion that "circumstances involving the same gender harassment" (Tabora Affidavit, ¶ 20) warrant this extraordinary relief is misguided. The current action remains one based in sexual harassment brought by the Claimant and the Court has been presented with no basis for shielding Claimant's identity.

The Court reaches a different conclusion as to the students who may be witnesses, for their involvement appears not to be as eyewitnesses to Claimant's action, but rather as Claimant's notice witnesses, apparently testifying as to their own highly personal experiences with Professor White. While the Court is mindful of Defendant's concerns that anonymity may breed embellishment (Acton Affidavit, ¶ 4), it notes that the witnesses' identities will be known to those involved in this proceeding and Defendant will have opportunity, should it choose, through depositions to explore the veracity of the witnesses. On balance, the Court finds that protecting their identity from public disclosure is appropriate.


Following the Court's earlier decision denying a sealing order, Claimant has now refined his request for confidentiality as to paper discovery and disclosure to prevent release to "non-parties...[and] be maintained from public disclosure until...used on motions or in trial" (Tabora Affirmation, ¶ 25). Claimant's papers express a concern only with "extensive" publication and public disclosure (Tabora Affirmation, ¶ 20). Defendant suggests a "middle course" which prohibits counsel from contacting the media and that a decision whether to seal the record await the close of the proof (Acton Affidavit, ¶ 4).

This Court is not comfortable extending the closure of its Court records in a vacuum. Following the Court's in camera review of the documents ordered disclosed, the Court will conduct a conference with the parties to establish what additional discovery and depositions may be required. At that time, the Court will fashion an appropriate protective order consistent with the foregoing (see, Doe v State of New York, 86 Misc 2d 639). Pending the conference and a further order of the Court, counsel and their clients are prohibited from the release of any information obtained in the course of this litigation to any third party or entity.

In accordance with the foregoing, the Claimant's motion is denied in part, granted in part and reserved in part and it is hereby

ORDERED, that Defendant deliver to Chambers for an in camera review the documents identified in paragraphs "1" and "2" of the Notice of Motion within seven (7) days of the file date of this decision and order.

October 8, 2002
Albany, New York

Judge of the Court of Claims

[1] While Claimant points out that Defendant failed to comply with the time limits set forth in the Court's order regarding the timing of papers for this motion, Claimant has not claimed prejudice and has filed a Reply; therefore, the Court considers Defendant's papers on this application.
[2] In Gonzaga University v Doe, __US __, 122 S Ct 2268, 2271-2272, decided June 20, 2002, it was held that the relevant provisions of FERPA create no personal rights to enforce under 42 USC § 1983. The Secretary of Education is empowered to enforce the various provisions of FERPA 20 USC § 1232g(f).