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September 24, 1999

Ms. Jo Ann Stone
4749 Prestwick Drive
Manlius, NY 13104

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. Stone:

As you are aware, I have received a variety of materials from you relating to concerns
"about the confidentiality and handling of [y]our daughter's file" and your efforts in obtaining
information from the Fayetteville-Manlius School District pursuant to the Freedom of
Information Law and the federal Family Educational Rights and Privacy Act ("FERPA", 20
USC §1232g). Based on our conversation, some of the information sought has been
disclosed: other aspects of your request have not been answered.

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to existing records, and §89(3) of that
statute states in part that an agency is not required to create a record in response to a request
for information. By means of example, one of your requests involves whether "any details
of [y]our daughter's situation have been discussed with representatives" of certain groups that
you later identified. The Freedom of Information Law would not require the preparation of
records containing the information sought. Nevertheless, the regulations promulgated by the
U.S. Department of Education (34 CFR Part 99) pursuant to FERPA impose recordkeeping
requirements relative to the disclosure of information that is personally identifiable to a
student.

By way of background, as you are likely aware, the focal point of the 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 the right to
confidentiality, or unless a student eighteen years or over similarly waives his or her right to
confidentiality. The 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 §
99.3).

Based upon the foregoing, references to students' names, parents' 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 unless an exception authorizes disclosure.

I note, too, that a "disclosure" is defined in §99.3 if the regulations to include not only
the dissemination or reproduction of an education record, but also information contained in
the record that is disclosed orally. Section 99.3 of the regulations defines the term
"disclosure" to mean:

"to permit access to or the release, transfer, or other communication of
personally identifiable information contained in education records to any
party, by any means, including oral, written or electronic means."

As such, a disclosure includes the oral communication of information contained in education
records pertaining to a student.

There are limited situations in which prior consent from parents of a minor student is
not required prior to disclosure. Those that may be pertinent to the matter involve situations
described in §99.31 of the regulations in which:

"(1) 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.
(2) The disclosure is, subject to the requirements of §99.34, to officials of
another
school, school system, or institution of postsecondary education where the
student seeks or intends to enroll."

Perhaps most important in view of the concerns that you expressed is §99.32, entitled
"What recordkeeping requirements exist concerning requests and disclosures?" Subdivision
(a) of that provision states that:

"(a)(1) An educational agency or institution shall maintain a record of each
request for access to and each disclosure of personally identifiable
information from the education records of each student.

(2) The agency or institution shall maintain the record
with the education records of the student as long as
the records are maintained.

(3) For each request or disclosure the record must
include:

(i) The parties who have requested or received
personally identifiable information from the
education records; and
(ii) The legitimate interests the parties had in
requesting or obtaining the information."

Subdivision (b) pertains to the redisclosure of student information in conjunction with §99.33
"only on the condition that the party to whom the information is disclosed will not disclose
the information to any other party without the prior consent of the parent..." and states that:

"(b) If an educational agency or institution discloses personally identifiable
information from an education record with the understanding
authorized under §99.33(b), the record of the disclosure required
under this section must include:

(1) The names of the additional parties to which the
receiving party may disclose the information on behalf
of the educational agency or institution; and

(2) The legitimate interests under §99.31 which each
additional parties has in requesting or obtaining the
information."

Based on the foregoing, it is clear that the District is required to maintain a record of
each request for and disclosure of personally identifiable pertaining to a student. Morever,
subdivision (c) of §99.32 specifies that the record of such disclosures must be maintained with
the education records and that the parent of a student has the right to inspect such records.

Second, you indicated that the District has not responded to other aspects of your
request. Specifically, you identified the following as not having been answered:

"5.) Records indicating the dates and/or number of times Impartial Hearing
Officers have been used by F.M. from 1996 to present time.

6.) Records indicating the number of times and/or the dates that F.M.
prevailed during the Impartial Hearings between 1996 and the present
time.

7.) Records indicating the number of times and/or number
of times F.M. went before the State Review Officer
from 1996 to the present time.

8.) Records indicating the number of times and/or dates
F.M. prevailed during hearings before the State
Review Officer between 1996 and the present time.

9.) Records indicating the dates and/or number of times
any student or employee has filed any type of
discrimination action against F.M. between 1995 and
the present time."

As indicated earlier, FERPA prohibits the District from disclosing information
personally identifiable to students without the consent of their parents. Consequently, insofar
as the records sought described above would identify students if disclosed, the District may
withhold those portions of the records. The records might also include names of employees,
but as I understand the request, you are not interested in their names. Consequently, those
aspects of the records may be deleted if disclosure would constitute "an unwarranted invasion
of personal privacy" [see Freedom of Information Law, §87(2)(b)]. The remaining
information that you have requested, essentially the dates and number of times that the
District has been involved in certain proceedings or claims, would in my opinion be available.
Those items would consist of factual information accessible under §87(2)(g)(i) of the
Freedom of Information Law.

It is reiterated that §89(3) of the Freedom of Information Law states in part that an
agency is not required to create or prepare a record in response to a request. Therefore, the
District would not be required to review records and prepare a total number hearings or a list
of dates to accommodate you. However, I believe that it would be required to provide access
to records containing the information sought, perhaps after the deletion of identifying details,
in order that you could ascertain the dates or number of various proceedings or claims. For
instance, if a substantial record or report has been prepared in relation to a matter, perhaps
the cover sheet or similar document could be disclosed to enable you to obtain the
information of you interest. With the appropriate copies, you could ascertain the numbers and
dates of such proceedings. Similarly, brief portions of records indicating the outcomes of
proceedings could be made available, again, following the deletion of identifying details where
appropriate.

Lastly, the Freedom of Information Law provides direction concerning the time and
manner in which an agency must respond to requests. Specifically, §89(3) of the Freedom
of Information Law states in part that:

"Each entity subject to the provisions of this article, within
five business days of the receipt of a written request for a
record reasonably described, shall make such record available
to the person requesting it, deny such request in writing or
furnish a written acknowledgement of the receipt of such
request and a statement of the approximate date when such
request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given
within five business days, or if an agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my opinion, be considered
to have been constructively denied. In such a circumstance, I believe that the denial may be
appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision
states in relevant part that:

"...any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive, or
governing body, who shall within ten business days of the
receipt of such appeal fully explain in writing to the person
requesting the record the reasons for further denial, or provide
access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not
rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of
the Freedom of Information Law, the appellant has exhausted his or her administrative
remedies and may initiate a challenge to a constructive denial of access under Article 78 of
the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774
(1982)].

In an effort to enhance compliance with and understanding of applicable law, copies
of this response will be forwarded to District officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Dr. Philip Martin
Lisa A. Miori-Dinneen