NY.gov Portal State Agency Listing

 

September 8, 1997

Ms. Victoria Ventresca
45 Via Da Vinci
Clifton Park, NY 12065

Dear Ms. Ventresca:

I have received your letter of July 29 and the materials attached to it. You have sought
assistance in obtaining certain information from the Shenendehowa Central School District.

Specifically, you have requested "student grade information with regard to the ninth and
tenth grade Global Studies Course," in " a listing presented by teacher of those grades, with an
indication of which course it is (i.e. ninth or tenth grade regents or non-regents) with a record of
the student's quarterly grades and final examination grade." In response to the request, you were
informed that the information was not available in an existing report, but after some negotiation,
you were advised that you could have the information upon payment of a fee of twenty-five cents
per page plus "a $40.00 charge for the person collecting the information." Further, you were
informed that in addition to the students' names, teachers' names would also be redacted.

From my perspective, insofar as the information in question exists, including teachers'
names, it must be disclosed. Further, I do not believe that the District may charge any fee other
than for photocopying. In this regard, I offer the following comments:

First, the Freedom of Information Law pertains to existing records, and §89 (3) of the Law
states in part that an agency need not create a record in response to a request. On the basis of your
letter, it appears that the information sought exists, perhaps not in the form a single "listing." If no
single record contains the information, rather than requesting a "listing", it is suggested that you
seek records that contain the information of your interest.


Second, 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.

Relevant under the circumstances is the initial ground for denial, §87(2)(a), which pertains
to records that are "specifically exempted from disclosure by state or federal statute." In this
instance, insofar as disclosure of the records in question would or could identify a student or
students, I believe that they must be withheld. A statute that exempts records from disclosure is
the Family Education Rights and Privacy Act (20 U.S.C. section 1232g), which is commonly
known as the "Buckley Amendment". In brief, the Buckley Amendment applies to all educational
agencies or institutions that participate in grant programs administered by the United States
Department of Education. As such, the Buckley Amendment includes within its scope virtually all
public educational institutions and many private educational institutions. The focal point of the
Act is the protection of privacy of students. It provides, in general, that any "education record," a
term that is broadly defined, that is personally identifiable to a particular student or students is
confidential, unless the parents of students under the age of eighteen waive their right to
confidentiality, or unless a student eighteen years or over similarly waives his or her right to
confidentiality. Further, the federal regulations promulgated under the Buckley Amendment
define the phrase "personally identifiable information" to include:

"(a) The student's name;
(b) The name of the student's parents or
other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social
security number or student number;
(e) A list of personal characteristics that would make
the student's identity easily traceable; or
(f) Other information that would make the student's
identity easily traceable" (34 CFR Section 99.3).

Based upon the foregoing, references to students' names or other aspects of records that would
make a student's identity easily traceable must in my view be withheld in order to comply with
federal law.

In a case dealing with a similar request, the records of test scores were prepared by class
alphabetically. The school district contended that, even if names of students were deleted, because
the lists were maintained alphabetically, the identities of some students might be made known. In
determining the issue, the Court ordered that names be deleted from the records and that the
records be "scrambled" in order to protect against the possible identification of students [Kryston
v. East Ramapo School District, 77 AD 2d 896 (1980)]. In my view, the School District would be
required to disclose the grades in a manner in which students' identities are protected. Stated
differently, the grades must be disclosed, but any identifying details pertaining to students must, in
my view, be withheld.

Third, as suggested earlier, I believe that the teachers' names must be disclosed. Pertinent
to the issue is §87(2)(b), which permits an agency to withhold records to the extent that disclosure
would constitute "an unwarranted invasion of personal privacy.' Based upon the judicial
decisions, it is clear that public officers and employees enjoy a lesser degree of privacy than others,
for it has been found in various contexts that those individuals are required to be more accountable
than others. The courts have found that, as a general rule, records that are relevant to the
performance of the official duties of a public officer or employee are available, for disclosure in
such instances would result in a permissible rather than an unwarranted invasion of personal
privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v.
County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of
Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons,
Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978);
Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530
NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct.,
Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].
Conversely, to the extent that items relating to public officers or employees are irrelevant to the
performance of their official duties, it has been found that disclosure would indeed constitute an
unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ,
Nov. 22, 1977, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup.
Ct., Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal attorney that
could indicate how that person spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994),
concerning disclosure of social security numbers].

In the context of your inquiry, the records are relevant not only to the performance of the
students in certain classes but also the teachers of those classes. Therefore, in my opinion, again,
the teachers' identities must be disclosed.

Next, from my perspective, unless a statute, an act of the State Legislature, authorizes an
agency to charge a fee for personnel time, searching for records or charging more than twenty-five
cents per photocopy for records up to nine by fourteen inches, no such fees may be assessed. In
this instance, I know of no statute that would authorize the District to do so.

By way of background, §87(1)(b)(iii) of the Freedom of Information Law stated until
October 15, 1982, that an agency could charge up to twenty-five cents per photocopy unless a
different fee was prescribed by "law". Chapter 73 of the Laws of 1982 replaced the word "law"
with the term "statute". As described in the Committee's fourth annual report to the Governor and
the Legislature of the Freedom of Information Law, which was submitted in December of 1981
and which recommended the amendment that is now law:

"The problem is that the term 'law' may include regulations, local
laws, or ordinances, for example. As such, state agencies by means
of regulation or municipalities by means of local law may and in
some instances have established fees in excess of twenty-five cents
per photocopy, thereby resulting in constructive denials of access.
To remove this problem, the word 'law' should be replaced by
'statute', thereby enabling an agency to charge more than twenty-five
cents only in situations in which an act of the State Legislature, a
statute, so specifies."

As such, prior to October 15, 1982, a local law, an ordinance, or a regulation for instance,
establishing a search fee or a fee in excess of twenty-five cents per photocopy or higher than the
actual cost of reproduction was valid. However, under the amendment, only an act of the State
Legislature, a statute, would in my view permit the assessment of a fee higher than twenty-five
cents per photocopy, a fee that exceeds the actual cost of reproducing records that cannot be
photocopied, or any other fee, such as a fee for search. In addition, it has been confirmed
judicially that fees inconsistent with the Freedom of Information Law may be validly charged only
when the authority to do so is conferred by a statute [see Sheehan v. City of Syracuse, 521 NYS 2d
207 (1987)].

The specific language of the Freedom of Information Law and the regulations promulgated
by the Committee on Open Government indicate that, absent statutory authority, an agency may
charge fees only for the reproduction of records. Section 87(1)(b) of the Freedom of Information
Law states:

"Each agency shall promulgate rules and regulations in conformance
with this article...and pursuant to such general rules and regulations
as may be promulgated by the committee on open government in
conformity with the provisions of this article, pertaining to the
availability of records and procedures to be followed, including, but
not limited to...

(iii) the fees for copies of records which shall not
exceed twenty-five cents per photocopy not in excess
of nine by fourteen inches, or the actual cost of
reproducing any other record, except when a
different fee is otherwise prescribed by statute."

The regulations promulgated by the Committee states in relevant part that:

"Except when a different fee is otherwise prescribed by statute:

(a) There shall be no fee charged for the following:
(1) inspection of records;

(2) search for records; or
(3) any certification pursuant to this Part" (21
NYCRR section 1401.8).

As such, the Committee's regulations specify that no fee may be charged for personnel time, for
inspection of or search for records, except as otherwise prescribed by statute.

Although compliance with the Freedom of Information Law involves the use of public
employees' time, the Court of Appeals has found that the Law is not intended to be given effect
"on a cost-accounting basis", but rather that "Meeting the public's legitimate right of access to
information concerning government is fulfillment of a governmental obligation, not the gift of, or
waste of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].

Lastly, the requirement referenced earlier that imposes an obligation on the Board of
Education as the District's governing body to promulgate regulations includes the duty to inform a
person denied access of the right to appeal. Section 1401.7(b) of regulations provides that:

"Denial of access shall be in writing stating the reason therefor and
advising the person denied access of his or her right to appeal to the
person or body established to hear appeals, and that person or body
shall be identified by name, title, business address and business
telephone number. The records access officer shall not be the
appeals officer.'

In an effort to enhance compliance with and understanding of the Freedom of Information
Law, copies of this opinion will be forwarded to the District.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman

RJF:tt

cc: Board of Education
Lorraine Longhurst