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June 23, 1999

 

Ms. Polly B. Nann
58 Pearl Street
Schuylerville, NY 12871

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. Nann:

I have received your letter of May 26, as well as the materials attached to it. You
have questioned "the extent to which individual education programs (IEP"S) must be
disclosed under FOIL."

As I understand the matter, IEP's are prepared by school districts or BOCES
regarding students with disabilities or who have a need for a specialized educational program.
To provide information concerning the contents of typical IEP's, you enclosed copies
prepared by several educational institutions. In one, the student's name, date of birth,
address, telephone number and the name of his or her guardian were deleted; the remainder
of the document was disclosed. In others, similar information was deleted, such as the names
of the parents of the students. In one of IEP's, virtually all of the information, other than the
form prior to being completed, was deleted.

From my perspective, only the personally identifiable information pertaining to a
student may justifiably be withheld or deleted. In this regard, I offer the following comments.

First, 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."

Based on the foregoing, IEP's and related documentation maintained by a school district or
BOCES would clearly constitute agency "records" that fall within the coverage of the
Freedom of Information Law.

Second, 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.

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 the
context of your inquiry, insofar as disclosure of the records in question would identify a
student, 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 direction provided by FERPA and the regulations that define "personally
identifiable information", 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.

Having reviewed the samples of IEP's that you enclosed, it is my view that the
deletion of unique identifiers, such as the names of students, their parents or guardians, dates
of birth, addresses and home telephone numbers would be adequate to protect the students'
privacy. I believe that the IEP from which all information, other than printed items on the
form itself, was deleted represents a failure to comply with the Freedom of Information Law.
In short, following the deletion of the kinds of unique identifiers described above, i.e.,
"personally identifiable information", the remainder of the completed form must, in my
opinion, be disclosed.

I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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