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December 28, 1999

FOIL-AO-11872

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The
ensuing staff advisory opinion is based solely upon the facts presented in your
correspondence.

Dear

I have received your letter of November 3 in which you raised the following question:
"if a school district has in its possession a copy of a referral to Child Protective Services on a
student, can that copy be released to a parent (or child if 18 years old under FOIL)?" You
indicated that the Nassau County Department of Child Protective Services has informed you
that the District cannot disclose.

In this regard, in an effort to obtain expert advice, I contacted an attorney with the
New York State Office of Children and Family Services who specializes in issues involving
child protective services. Based on our discussion, with certain exceptions, I believe that the
District may disclose the record in question to a parent. Such disclosure would not be made
pursuant to the Freedom of Information Law, but rather pursuant to either the federal Family
Educational Rights and Privacy Act ("FERPA", 20 USC §1232g) or §422 of the Social
Services Law.

In brief, as you may be aware, 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 our that even though a parent might not have custody of a child, that factor
alone is not determinative of right conferred by FERPA. The term "parent" is defined in the
regulations adopted pursuant to FERPA by the United States Department of Education to
mean a "parent of a student and includes a natural parent, a guardian, or an individual acting
as a parent in the absence of a parent or a guardian" (34 CFR 99.3). Further, 34 CFR 99.4
states that:

"An educational agency or institution shall give full rights
under the Act to either parent, unless the agency or institution
has been provided with evidence that there is a court order,
State statute, or legally binding document relating to such
matters as divorce, separation, or custody that specifically
revokes those rights."

Based on the foregoing, in the case of divorce or separation, a school district must, in my
view, provide access to both natural parents, custodial and non-custodial, unless there is a
legally binding document that specifically removes a parent's rights under FERPA, or a
statutory prohibition against disclosure. I believe that a legally binding document would
include a court order or other legal paper that prohibits access to educational records, or
removes the parent's rights to have knowledge about his or her child's education.

Although the Freedom of Information Law generally deals with rights of access to
agency records, relevant in this instance is §87 (2)(a) of that statute, which provides that an
agency may deny access to records or portions thereof that "are specifically exempted from
disclosure by state or federal statute...". Section 422 of the Social Services Law is a statute
which pertains specifically to the statewide central register utilized by an agency having
responsibility regarding such matters. Subdivision (4)(A) of section 422 states that reports as
well as information concerning those reports are confidential, and may be disclosed only
under specified circumstances listed in that statute. One of those circumstances involves
disclosures to " any person who is the subject of the report or other persons named in the
report" [§422 (A)(d)]. In addition, subdivision (7) of section 422 states:

"At any time, a subject of a report and other persons names in
the report may received, upon request, a copy of all information
contained in the central register; provided, however, that the
commissioner is authorized to prohibit the release of date that
would identify the person who made the report or who
cooperated in a subsequent investigation or the agency,
institutes, organizations, program or other entity where such
person is employed or with which he is associated, which he
reasonably finds will be detrimental to the safety or interests of
such person."

Based on the foregoing, although a report may generally be available to a parent, those
portions that would, if disclosed, identify the source of the report may be withheld to protect
that person's privacy and safety.

Lastly, I note that a new subdivision (5) of §422 of the Social Services Law generally
prohibits the disclosure of reports that have been determined to be unfounded. As such,
when a request for a report is received by the District, it is suggested that contact be made
with the County Department of Child Protective Services to determine the status of the
report.

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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