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April 6, 1999

 

Patricia A. Hennessey, Superintendent
Southold Union Free School District
P.O. Box 470
Southold, NY 11971

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. Hennessey:

As you are aware, I have received your correspondence of March 22. You have
sought my views concerning a policy proposed by a member of the Board of Education of the
Southold School District.

The proposal is based on the principle that the Superintendent "has an obligation to
keep the Board of Education informed about the progress and conditions of district schools",
and that the Board may "require special reports from the Superintendent on special issues or
to monitor the effectiveness with which the school system is being administered." In
conjunction with the foregoing and the adoption of a "Standard Incident Report Form", the
proposed policy states that:

"It will be mandatory for Every District Employee to generate
a report upon witnessing or participating in an incident. It is
also mandatory that the form be generated for every
Detention, Suspension, Referral or Parent/Teacher
Conference."

The report would be completed and forwarded to an immediate supervisor who could
comment upon or add to its contents. Thereafter, the report with any such additions would
be sent to the Superintendent, who would "then include in writing any action,
recommendations, or observations taken on his/her part." Finally, the policy would require
that the completed form "be sent to all Board of Education Members."

While I am willing to offer an opinion, since the matter does not deal directly with the
statutes within the advisory jurisdiction of the Committee on Government, it is suggested that
you also seek the views of the agency that oversees the pertinent statute, the Family
Educational Rights and Privacy Act ("FERPA", 20 USC §1232g). Specifically, within the
United States Department of Education is the Family Policy Compliance Office, which is
located at 400 Maryland Avenue, SW, Washington, DC 20202-4605 and can be reached by
phone at (202)260-3887.

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 and many private educational institutions.

The focal point of FERPA 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).

In view of the language quoted above, references to students' names, parents' names, or other
aspects of records that would make a student's identity easily traceable must ordinarily be
withheld in order to comply with federal law.

The circumstances in which prior consent to disclose information personally
identifiable to a student is not required are detailed in §99.31 of the regulations. Pertinent to
the matter is subdivision (1), which authorizes the release of such information when:

"The disclosure is to other school officials, including teachers,
within the agency or institution whom the agency or institution
has determined to have legitimate educational interests."

Based on the foregoing, in order to justify disclosure of information identifiable to a student,
there must be a "legitimate educational interest" on the part of the recipient of the
information.

From my perspective, there are some incidents, those of a serious or unusual nature,
that might properly be reported to a supervisor, the Superintendent and to the Board of
Education. For instance, if there is an act of violence, or if a student is found to have a
weapon or drugs, such matters might appropriately be reported to all of those indicated in the
proposal; each would have a duty relative to the conditions within a school and/or the
effectiveness of the system's administration.

Nevertheless, there are other "incidents" which in my view are so minor or routine that
the extensive disclosure required by the proposal would conflict with the basic intent of the
FERPA: to protect the privacy of students by preventing all but necessary disclosures. If a
student is given detention for chewing gum or being two minutes late to class, that kind of
incident in my opinion would not merit being reported to the array of individuals indicated in
the proposal. Similarly, reports would be required to be prepared and disseminated with
respect events which are not defined. A "referral" would require the preparation and
distribution of a report. The proposal, however, does not define the kind of referral intended
to be reported. In the same vein, every parent/teacher conference would have reported on
a form and distributed to those identified in the proposal. Is the intent to include even the
most routine parent/teacher conference held with every parent of every child throughout
elementary school as a reportable incident?

The kinds of events or "incidents" described above do not in my view involve the
"legitimate educational interests" envisioned by the federal regulations. For that reason, I
believe that the proposed policy is inappropriate and inconsistent with federal law. Again,
however, it is suggested that you confer with a representative of the Family Policy
Compliance Office for the purpose of obtaining the opinion of the agency that oversees
FERPA.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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