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June 30, 1998

E-Mail

TO: Michael Lisuzzo<michael.saratoga@internetmci.com

From: Robert J. Freeman, Executive Director

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.

Dear Mr. Lisuzzo:

I have received your letter of June 15, as well as materials related to it.

According to your letter, following reports of thefts of ritalin from various schools in
your area, you sent a request to the Shenendehowa School District in which you sought "the
names of employees who were authorized to dispense, store, and order Ritalin", as well as a
"quantification of the amount and frequency of Ritalin dispensed on an average day and week
over the past year." The District responded by indicating "that they don't know and don't
keep a record of these specific employees" and that "they have no records of the dispensing
of Ritalin." You added that the District indicated that the only information on the subject is
found in student records.

You have sought assistance in the matter. In this regard, I offer the following
comments.

First, as a general matter, the Freedom of Information Law pertains to existing
records, and §89(3) of the Law states in part that an agency is not required to create a record
in response to a request. Therefore, if, for example, there are no records that include a
"quantification" or statistics pertaining to ritalin use, the District would not be obliged to
prepare new records containing the information sought on your behalf.

Second, however, the Freedom of Information Law pertains to all agency records and
defines the term "record" expansively to mean:

"any information kept, held, filed, produced, reproduced by,
with or for an agency or the state legislature, in any physical
form whatsoever including, but not limited to, reports,
statements, examinations, memoranda, opinions, folders, files,
books, manuals, pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer tapes or discs,
rules, regulations or codes."

Third, 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. It is emphasized that the introductory language of §87(2)
refers to the authority to withhold "records or portions thereof" that fall within one or more
of the grounds for denial that follow. The phrase quoted in the preceding sentence is based
on a recognition that a single record might include both available and deniable information.
It also imposes an obligation on an agency to review records sought in their entirety to
determine which portions, if any, may justifiably be withheld and to disclose the remainder.

From my perspective, if the District maintains any records that identify employees
authorized to dispense, store or order ritalin or any other drug, those records, insofar as they
include those items, must be disclosed, perhaps after the deletion of other aspects of the
records.

Relevant to the matter 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 "FERPA." In brief, FERPA 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. Further, the federal regulations promulgated under FERPA 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 request that may be somewhat analogous to yours, an
applicant sought records of test scores that were prepared by class in alphabetical order. 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 that decision, the
district was required to disclose the grades in a manner in which students' identities were
protected. Stated differently, the grades were required to be disclosed, but any identifying
details pertaining to students were required to have been withheld. In the context of your
request, if records are maintained by the District dealing with ritalin use by students, based
upon FERPA, Kryston and the language of the Freedom of Information Law, I believe that
they would be available, following the deletion of any information that would be personally
identifiable to a student.

I hope that I have been of assistance.
Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Laraine Longhurst