Rome City School Dist. Disciplinary Hearing v. Grifasi, 10 Misc.

3d 1034 (2005)
806 N.Y.S.2d 381, 205 Ed. Law Rep. 511, 2005 N.Y. Slip Op. 25525

10 Misc.3d 1034
Supreme Court, Oneida County, New York.

[2]

Videotape of altercation between students that

was recorded on school district video camera was
not an educational record within the meaning
of Federal Family Educational Rights and
Privacy Act (FERPA); videotape was recorded
to maintain physical security and safety of
the school building and did not pertain to the
educational performance of the students captured
on the tape. Family Educational Rights and
Privacy Act of 1974, 513(a), 20 U.S.C.A.
1232g(a)(4)(A, B); 34 C.F.R. 99.8(a).

In the Matter of ROME CITY SCHOOL

DISTRICT DISCIPLINARY HEARING, Plaintiff
v.
Mark J. GRIFASI, Jr., pursuant to Section 3214(3)
(c) of the New York State Education Law, Defendant.
Oct. 28, 2005.
Synopsis
Background: Student who was suspended for fighting
applied for a judicial subpoena duces tecum directing school
district to produce all videotapes or audiotapes depicting the
altercation which was the subject of his disciplinary hearing.

Cases that cite this headnote

[3]

Holdings: The Supreme Court, Oneida County, Anthony F.

Shaheen, J., held that:
[1] videotape of altercation recorded on school district video
camera was not an educational record within the meaning
of Federal Family Educational Rights and Privacy Act
(FERPA), and
[2] student was entitled to production of the videotape.

Ordered accordingly.

Records
Regulations limiting access; offenses

Constitutional Law
Disciplinary proceedings
Education
Proceedings in general
Student who was suspended for fighting was
entitled to judicial subpoena duces tecum
directing school district to produce security
videotape which depicted the fight; although tape
also depicted other students, the student's due
process rights outweighed the district's interest
in protecting any claimed confidentiality of the
tape.
Cases that cite this headnote

West Headnotes (3)

Attorneys and Law Firms
[1]

Action
Statutory rights of action

**381 Diane MartinGrande, Esq., Rome, for Mark J.

Grifasi, Jr.

Records
Regulations limiting access; offenses

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., Miles

G. Lawlor, Esq., of counsel, East Syracuse, for Rome City
School District.

Federal Family Educational Rights and Privacy

Act (FERPA) does not provide for a private right
of action; rather, it provides Federal Government
funding will be cut off if there is a violation of
FERPA. Family Educational Rights and Privacy
Act of 1974, 513(a), 20 U.S.C.A. 1232g.
Cases that cite this headnote

Opinion
ANTHONY F. SHAHEEN, J.
*1035 The Court heard oral argument on October 12, 2005
concerning Mr. Grifasi's application for a judicial subpoena
duces tecum directing the Rome City School District to

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Rome City School Dist. Disciplinary Hearing v. Grifasi, 10 Misc.3d 1034 (2005)
806 N.Y.S.2d 381, 205 Ed. Law Rep. 511, 2005 N.Y. Slip Op. 25525

produce all videotapes and/or audiotapes depicting the

altercation which was the subject of Mr. Grifasi's disciplinary
hearing on March 31, 2005. At that time, the Court reserved
Decision, and requested the School District's counsel to
submit information as to whether the Hearing Officer Donald
E. Budmen, Esq. saw the videotape in question at any time.
**382 The Court has now received an affidavit from
Hearing Officer Donald E. Budmen, Esq. stating that it was
his understanding that a School District videotape captured
images of Mr. Grifasi and other students involved in an
altercation on March 28, 2005, along with other students
who were in the vicinity of the altercation. Hearing Officer
Budmen states that he did not at any time, either before
or after the hearing, view this tape. Rather, he asserts that
his decision to recommend Mr. Grifasi's suspension for the
remainder of the 20042005 school year was based solely
on the testimony of a District teacher, the testimony of Mr.
Grifasi including his admission to striking a fellow student,
and the documentary evidence introduced at the hearing.
The Court has also reviewed the letter from counsel for the
School District in support of the School District's position
that this videotape constitutes an educational record which
they are prohibited from disclosing, as well as the letter
from Mr. Grifasi's counsel wherein she reiterates Mr. Grifasi's
position that this tape is not an educational record within the
meaning of FERPA and that in any event the tape has already
been disclosed to various entities including the Rome Police
Department.

video camera. The School District admits that this videotape

was viewed by a number of persons including officials of the
School District as part of their investigation of this altercation,
members of the Rome Police Department who used it as
evidence to commence a criminal proceeding against Mark
in Rome City Court, the School District's counsel, and prior
counsel for Mr. Grifasi, Jr. who filed a Notice of Claim on his
behalf. Now, after disclosing this videotape to these several
persons, the School District opposes Mr. Grifasi's application
for a judicial subpoena duces tecum, on the grounds that
FERPA prohibits disclosure of this videotape under threat of
the School District losing Federal funding. The Court finds
the School District's arguments to be unpersuasive.

[1] The School District is correct that the Federal Family

Educational Rights and Privacy Act of 1974 [known as
FERPA] does not provide for a private right of action;
rather, it provides Federal Government funding will be cut
off if there is a violation of FERPA. In the application before
this Court, Mark J. Grifasi, Jr. is not commencing a private
action against the School District for money damages; rather,
he is petitioning this Court for the release of the videotape for
purposes of appealing the School District's determination to
suspend him for the balance of the 20042005 school year.

[2] On the particular facts before this Court, the School

District's interest in protecting the confidentiality of school
records must be weighed against the due process rights
of Mark Grifasi, Jr. who is appealing his suspension after
a Superintendent's hearing. Under the provisions of the
Federal Family Educational Rights and Privacy Act of 1974,
education records are defined as records, files, documents
and other material which contain information directly related
to a student; and such education records do not include
records maintained by a law enforcement unit of the
educational agency or institution that were created by that law
enforcement unit for the purpose of law enforcement **383
(see 20 USC 1232g[a][4][A] and [B] ). A law enforcement
unit means any individual, office, department, division or
other component of an educational agency or institution ...
that is officially authorized or designated by that agency or
institution to enforce any local, State or Federal law, or refer
to appropriate authorities a matter for enforcement of any
local, State or Federal law against any individual; or one that
is officially authorized to maintain the physical security and
safety of the agency or institution (see 34 CFR 99.8[a] ).
This Federal statute is intended to protect records relating
to an individual student's performance. FERPA is not meant
to apply to records, such as the videotape in question which
was recorded *1037 to maintain the physical security and
safety of the school building and which does not pertain to
the educational performance of the students captured on this
tape (see Culbert v. City of New York, 254 A.D.2d 385, 679
N.Y.S.2d 148 [2nd Dept.1998] ). Clearly, the videotape in
question is not an educational record within the meaning of
FERPA.

*1036 It is uncontested that Mark Grifasi Jr. was involved

in an incident at Rome Free Academy, and that he and a
number of other students were recorded on a School District

[3] The Court is mindful of the Opinion of the Family

Policy Compliance Office dated February 10, 2004, which
is cited by the School District. However, in that case, the

The Court has again reviewed the submissions of the parties

on this application, and has given due consideration to the
parties' respective arguments at Motion Term. After due
deliberation, the Court renders the following Decision:

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Rome City School Dist. Disciplinary Hearing v. Grifasi, 10 Misc.3d 1034 (2005)
806 N.Y.S.2d 381, 205 Ed. Law Rep. 511, 2005 N.Y. Slip Op. 25525

petitioner's child was the only student pictured fighting in

that videotape and the Compliance Office opined that the
parent had a right to view that tape. The Compliance Office
further opined that if another student is pictured fighting in the
videotape, then petitioner would not have the right to inspect
that portion of the videotape. Where, as here, Mark Grifasi,
Jr. and other students are apparently on the same portion
of the videotape, this Court must balance the respective
rights of the parties, and after so doing, the Court finds that
Mr. Grifasi's due process rights must outweigh the School
District's interest in protecting any claimed confidentiality of
this tape. The School District's stated concern about losing
Federal funding is without merit, since the School District
will now be releasing this videotape upon specific Court
Order by way of a judicial subpoena duces tecum, not by
way of a voluntary disclosure as was previously done by the
School District.
End of Document

For the reasons stated, the application of Mark J. Grifasi

Jr. for a judicial subpoena duces tecum is granted. This
constitutes the Decision of the Court. No costs, disbursements
or attorney's fees are awarded. Counsel for Mark J. Grifasi,
Jr. is directed to submit a proposed Order for signature,
with this original Decision appended thereto, along with a
proposed subpoena duces tecum, after submitting a copy of
both documents to counsel for the School District for approval
as to form.

Parallel Citations
10 Misc.3d 1034, 806 N.Y.S.2d 381, 205 Ed. Law Rep. 511,
2005 N.Y. Slip Op. 25525

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2014 Thomson Reuters. No claim to original U.S. Government Works.