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July 1, 1998

Ms. Julie Kessler
28 Alsace Place
Northport, NY 11768

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 Ms. Kessler:

I have received your letter of June 15 in which you sought an advisory opinion.

As I understand the matter, you requested notes taken at a meeting by an assistant
superintendent of the Northport-East Northport Union Free School District relating to your
daughter's "social and curriculum development and needs." She responded by indicating that
the notes are "personal" and "are not available for others to view." You have asked whether
the notes fall within the coverage of the Freedom of Information Law. In addition, you
questioned the authority of the School District or the administrator to destroy the notes.

In this regard, I offer the following comments.

First, based on the language of the Freedom of Information Law and its judicial
interpretation, the notes would, in my opinion, clearly fall within its scope. That statute
pertains to agency records and defines the term "record" expansively to include:

"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."

The Court of Appeals, the State's highest court, has construed the definition as
broadly as its specific language suggests. The first such decision that dealt squarely with the
scope of the term "record" involved documents pertaining to a lottery sponsored by a fire
department. Although the agency contended that the documents did not pertain to the
performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental"
activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy"
[see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found
that the documents constituted "records" subject to rights of access granted by the Law.
Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the
purpose for which it relates. This conclusion accords with the
spirit as well as the letter of the statute. For not only are the
expanding boundaries of governmental activity increasingly
difficult to draw, but in perception, if not in actuality, there is
bound to be considerable crossover between governmental
and nongovernmental activities, especially where both are
carried on by the same person or persons" (id.).

In another decision rendered by the Court of Appeals, the Court focused on an agency
claim that it could "engage in unilateral prescreening of those documents which it deems to
be outside of the scope of FOIL" and found that such activity "would be inconsistent with the
process set forth in the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)].
The Court determined that:

"...the procedure permitting an unreviewable prescreening of
documents - which respondents urge us to engraft on the
statute - could be used by an uncooperative and obdurate
public official or agency to block an entirely legitimate
request. There would be no way to prevent a custodian of
records from removing a public record from FOIL's reach by
simply labeling it 'purely private.' Such a construction, which
would thwart the entire objective of FOIL by creating an easy
means of avoiding compliance, should be rejected" (id., 254).

Further, in a case involving notes taken by the Secretary to the Board of Regents that
he characterized as "personal" in conjunction with a contention that he took notes in part "as
a private person making personal notes of observations...in the course of" meetings. In that
decision, the court cited the definition of "record" and determined that the notes did not
consist of personal property but rather were records subject to rights conferred by the
Freedom of Information Law [Warder v. Board of Regents, 410 NYS 2d 742, 743 (1978)].

Also pertinent is the Family Education Rights and Privacy Act (20 U.S.C. §1232g),
which is commonly known as "FERPA". In brief, FERPA applies to all educational agencies
or institutions that participate in funding, loan or 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. 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 from the public
in order to comply with federal law. Concurrently, if a parent of student requests records
pertaining to his or her child, the parent ordinarily will have rights of access to those portions
of records that are personally identifiable to their children.

I point out that the federal regulations exclude from the definition of "education
records" :

"Records of instructional, supervisory, and administrative
personnel and educational personnel ancillary to those persons
that are kept in the sole possession of the maker of the record,
and are not accessible or revealed to any other person except
a temporary substitute for the maker of the record..." [34 CFR
99.3(b)(1)].

Therefore, if, for example, an administrator or teacher prepares notes of a meeting and does
not share or disclose the notes to any other person, FERPA would not apply. In that
scenario, even though FERPA would not apply to the notes, due to the breadth of the
definition of "record" in the Freedom of Information Law, the notes would fall within the
scope of that statute. In brief, 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.

Assuming that the Freedom of Information Law governs rights of access rather than
FERPA, two of the grounds for denial would likely be pertinent to an analysis of rights of
access to notes or similar records. Section 87(2)(b) permits an agency to withhold records
insofar as disclosure would constitute "an unwarranted invasion of personal privacy." If, for
instance, a parent requests notes and the notes include reference to several students, I believe
that a school district could withhold those portions pertaining to the students other than the
child or children of the person making the request in order to protect privacy.

The other provision of significance is §87(2)(g), which permits an agency to withhold
records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits
performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While
inter-agency or intra-agency materials may be withheld, portions of such materials consisting
of statistical or factual information, instructions to staff that affect the public, final agency
policy or determinations or external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those portions of inter-agency or
intra-agency materials that are reflective of opinion, advice, recommendation and the like
could in my view be withheld.

If notes taken at a meeting merely consist of a factual rendition of what was said or
what transpired, they would consist of factual information available under §87(2)(g)(i), except
to the extent that a different ground for denial could be asserted [i.e., §87(2)(b) concerning
the protection of privacy]. Insofar as notes might include expressions of opinion, or
conjecture on the part of the author, they would fall within the scope of the exception.

Second, the Freedom of Information Law does not deal with the destruction of
records. More relevant in my view is the "Local Government Records Law", Article 57-A
of the Arts and Cultural Affairs Law, which deals with the management, custody, retention
and disposal of records by local governments. For purposes of those provisions, §57.17(4)
of the Arts and Cultural Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other information-recording device, regardless of physical form or characteristic,
that is made, produced, executed, or received by any local
government or officer thereof pursuant to law or in connection
with the transaction of public business. Record as used herein
shall not be deemed to include library materials, extra copies
of documents created only for convenience of reference, and
stocks of publications."

With respect to the retention and disposal of records, §57.25 of the Arts and Cultural
Affairs Law states in relevant part that:

"1. It shall be the responsibility of every local officer to
maintain records to adequately document the transaction of
public business and the services and programs for which such
officer is responsible; to retain and have custody of such
records for so long as the records are needed for the conduct
of the business of the office; to adequately protect such
records; to cooperate with the local government's records
management officer on programs for the orderly and efficient
management of records including identification and
management of inactive records and identification and
preservation of records of enduring value; to dispose of
records in accordance with legal requirements; and to pass on
to his successor records needed for the continuing conduct of
business of the office...

2. No local officer shall destroy, sell or otherwise dispose of
any public record without the consent of the commissioner of
education. The commissioner of education shall, after
consultation with other state agencies and with local
government officers, determine the minimum length of time
that records need to be retained. Such commissioner is
authorized to develop, adopt by regulation, issue and
distribute to local governments retention and disposal
schedules establishing minimum retention periods..."

In view of the foregoing, records cannot be destroyed without the consent of the
Commissioner of Education, and local officials cannot destroy or dispose of records until the
minimum period for the retention of the records has been reached. I note that the provisions
relating to the retention and disposal of records are carried out by a unit of the State
Education Department, the State Archives and Records Administration. It is my
understanding that you have contacted that agency and that it will offer guidance regarding
the destruction of records.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Dr. Abruzzo, Assistant Superintendent
Warren Broderick