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April 5, 1999

 

Mr. Harvey M. Elentuck
139-15 83 Avenue #326
Jamaica, NY 11435-1517

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. Elentuck:

I have received your note of March 18. You focused on a document referenced in a
grievance decision and questioned whether that document would be available under the
Freedom of Information Law.

In this regard, I would conjecture that the document in question is what has been
characterized as a "Holt" letter. A Holt letter is in the nature of a warning rather than a
determination indicating guilt or misconduct.

As I understand the Education Law as it pertains to tenured persons, a reprimand
cannot be placed into a teacher's file unless the teacher has been charged and found to have
engaged in misconduct in accordance with §3020-a of the Education Law. In contrast, a
teacher may be evaluated at anytime relative to any performance of any nature, and a letter
of evaluation may be placed in the teacher's file. This distinction was addressed by the Court
of Appeals in Holt v. Board of Education of Webutuck Central School District (52 NY2d
625). As stated in Holt:

"The critical evaluations in issue fall within this permissible
range of administrative evaluation. While the language of the
administrators' letters may appear to some to be in the nature
of a ‘reprimand' within the literal meaning of that word, it falls
far short of the sort of formal reprimand contemplated by the
statute. Although the sharply critical content of the letters is
unmistakable, the purpose of such communications - to call to
the teacher's attention a relatively minor breach of school
policy and to encourage compliance with that policy in the
future - is also clear. The purpose is to warn, and hopefully to
instruct - not punish. Further, the documents in question are
issued by a single administrator. While the inclusion of such
letter in the teacher's permanent file may have some effect on
his future advancement or potential employability elsewhere,
it is by no means as damaging as a formal reprimand issued by
the board of education as a result of a determination of
misconduct made by an impartial hearing panel. Each letter
represents one administrator's view, not a formal finding of
misconduct.

In my opinion, notwithstanding its title or characterization, a document consisting of
a "warning" or an administrator's opinion regarding a teacher's conduct, rather than a formal
finding of misconduct, could be withheld pursuant to §87(2)(g) of the Freedom of
Information Law. Such a document would not in my view represent a "final agency
determination", which I believe would be accessible pursuant to §87(2)(g)(iii).

Your remaining comments deal with lesson observation reports. As indicated in
previous correspondence, I will not address that issue again.

Sincerely,

 

Robert J. Freeman
Executive Director

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