April 14, 1998
Ms. Lynne Bernstein
Byram Hills School District
29 Hickory Pass
Bedford, NY 10506
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, unless otherwise indicated.
Dear Ms. Bernstein:
As you are aware, I have received your memorandum of March 30 concerning the release of “student directory information.” Attached to the memorandum is a copy of District policies concerning directory information and the “school mailing list.”
The policy essentially defines the scope of directory information and states that the District “shall not release information to a third party group or individual without the individual consent of the student.” In relation to the foregoing, you raised the following questions:
“1. Must our policy state the mechanism for obtaining permission to release directory information (or request not to release such information)? Are we required to establish and publish administrative procedures for doing so?
“2. Is our policy adequate in referring to “consent of the student” rather than of the parents? (We are a K-12 district.).”
In this regard, by way of background, the Family Educational Rights and Privacy Act (FERPA; 20 USC §1232g) applies to all educational agencies or institutions that participate in grant programs administered by the United States Department of Education. As such, FERPA 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. An “eligible student” is defined in the Code of Federal Regulations to mean “student who has reached 18 years of age or is attending an institution of post-secondary education” (34 CFR §99.3).
An exception to the rule of confidentiality in FERPA involves "directory information", which is defined in the regulations of the Department of Education (§99.3) to include:
"....information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not limited to the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended."
Prior to disclosing directory information, educational agencies must provide notice to parents of students or to eligible students in order that they may essentially prohibit any or all of the items from being disclosed. Specifically, §99.37 of the regulations promulgated pursuant to FERPA state in relevant part that:
“(a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the agency or institution of --
(1) The types of personally identifiable information that the agency or institution has designated as directory information;
(2) A parent’s or eligible student’s right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and
(3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as directory information.”
The regulations also indicate that a consent to disclose can only be given by the parent of a student under the age of eighteen; students have no rights under FERPA until they reach the age of eighteen. As such, if a student is under the agency of eighteen, his or her consent, from my perspective, is irrelevant.
With respect to the mailing list, the policy states that:
“The board, acting through the superintendent’s office, may allow use of the school district’s mailing list to district or community organizations for school-related, student-oriented, or educational activities not inconsistent with the regular school program.
“Material to be disseminated must not be commercially solicitous, politically partisan, or religion oriented.
“The board retains the right to refuse permission when in its judgment such refusal is in the best interest of the district.”
Based on our discussion, it is your belief that the record in question is essentially a list of the addresses of all taxpayers within the District. If that is so, I believe that the policy is, in some respects, inconsistent with the Freedom of Information Law. A list of taxpayers or residents would not signify any parental or similar connection with the School District; it would simply refer to residents of the District. In that circumstance, FERPA would not be applicable and the Freedom of Information Law would govern rights of access. In brief, that statute 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.
The only situation in which a mailing list could be withheld would involve §89(2)(b)(iii) of the Freedom of Information Law, which authorizes an agency to withhold a list of names and addresses, if the list would be used for “commercial or fund-raising purposes.” In all other circumstances, the list would be public. I note that the policy indicates that the list “must not be” disclosed if it is sought for “politically partisan” purposes and that the Board can choose to deny access when disclosure would not be “in the best interest of the district.” From my perspective, such restrictions could not legally be justified. In a case in which a school district resident sought a district-wide mailing list for a political purpose, i.e., to express his opposition to the district’s proposed budget, the Court determined that the list must be disclosed (Samuel v. Mace and Penfield Central School District, Supreme Court, Monroe County, December 18, 1991).
If the District maintains a list of parents of students, such a record would fall within the scope of FERPA. As indicated earlier, that statute pertains to information personally identifiable to a student. According to the federal regulations, “personally identifiable information” includes not only the student’s name but the name of student’s parents or other family member and the address of the student or his or her family (§99.3). Consequently, I do not believe that a list of parents of students could be disclosed without consent given by parents identified in the list.
I hope that I have been of assistance.
Robert J. Freeman