Wallach, J. (concurring). The presentment agency filed a juvenile delinquency petition against respondent for acts committed in the classroom of the complaining witness teacher. Without specifying the basis therefor, respondent served a subpoena on the Assistant Principal demanding "names, addresses and telephone numbers for each student and nonstudents who were in the classroom” at the time in question. When no answer was received, respondent, contending that the information demanded was necessary to discover witnesses to the events charged in the proceeding, sought and obtained an order directing the Assistant Principal to show cause why she should not be held in contempt. A cross motion to quash was filed. The court denied the motion to quash unless the Assistant Principal agreed to produce the named persons at a mutually selected time and place, in which event she need not provide the names and other identifying information. Otherwise, the Assistant Principal was "directed to produce the information as to names and telephone numbers or times the children can be brought to answer a telephone at school.”
While a subpoena may not be utilized to obtain information where there is no demonstration of relevancy or materiality, and the evidence sought "would not directly bear on the hard issue of guilt or innocence” (People v Gissendanner, 48 NY2d 543, 550), the information sought here is necessary to locate eyewitnesses to the alleged crime, and thus bears directly on the issue of guilt or innocence. The subpoena is not being used for general discovery purposes, or "an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable [respondent] to impeach the witness” (People v Gissendanner, supra, at 549).
Furthermore, I differ with the view of my dissenting colleagues that the confidentiality provisions of Education Law § 3212-a create an insuperable bar to the enforcement of this subpoena. In the City of New York, the pertinent provisions of the Family Educational Rights and Privacy Act (FERPA; 20 USC § 1232g [commonly referred to as the Buckley Amendment]) are incorporated into the regulations of the schools’ Chancellor by release No. A-820, issued October 1, 1979. Those regulations provide that "[i]t is the responsibility of each school to preserve the rights of privacy of all students and parents,” and that under the policies of FERPA and the Board of Education, parents have the right to control disclosure from *408a child’s education records, with certain exceptions (see, 20 USC § 1232g [h] [2]). However, the Buckley Amendment, although imposing broad confidentiality requirements for student records, carves out a significant exception by allowing conditional disclosure of " 'directory information’ ” (20 USC § 1232g [a] [5]), which includes the student’s name, address and telephone listing, the very items sought here.
Contrary to the dissent, there is no suggestion here that these provisions have been complied with, nor is it urged that the Chancellor’s regulations can alter a statute. Rather, those regulations are cited simply to indicate the relatively modest privacy interest which is implicated here.
But, even assuming the confidentiality policy of the Education Law were cast in the most absolute terms, this could not defeat respondent’s rights to compliance, which are of constitutional and due process dimensions. As was cogently stated in People v Heller (126 Mise 2d 575, 577), "The rights to compulsory process and to confrontation of witnesses are basic to our system of justice. The Supreme Court has recognized its 'manifest duty * * * to vindicate those guarantees’ (United States v Nixon, 418 US 683, 711 [1974]). The landmark cases of Brady v Maryland [373 US 83 (1963)], and Giglio v United States (405 US 150 [1972]) underscore the rights of criminal defendants to discover exculpatory evidence in the possession of the prosecution. The duty of the prosecuting authority to comply is an affirmative one (United States v Agurs, 427 US 97 [1976]), grounded in considerations of 'elemental fairness to the defendant and as a matter of professional responsibility’ (People v Cowart, NYU, Jan. 29, 1982, p 7, col 2 [Supreme Ct, Bronx County, Bernstein, J.]). When those guaranteed rights are in direct conflict with a policy of another governmental authority, one must yield. It is the opinion of this court that, in this case, the rights of those competing authority must yield to those of the defendant. ” (Emphasis added.)