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October 29, 2001

 

Ms. Donna I. Kianka
62 Dubois Avenue
Sea Cliff, NY 11579

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. Kianka:

I have received your letter in which you sought my views concerning a response by the North
Shore School District to your request for records pertaining to your daughter. You wrote that the
District offered no "concrete reason" for her rejection from a certain program, and that you then
sought records, some of which you read, including "written statements from the principal and from
her teacher at the time..." In response to the request, you were informed that the records "were not
in her file", that they are not available to parents, and that they might have been destroyed.

From my perspective, three provisions of law are pertinent to an analysis of the situation that
you described. In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to all agency records, such as those
maintained by or for a school district. Specifically, that statute pertains to agency records and
defines the term "record" expansively to include:

"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."

The Court of Appeals, the State's highest court, has construed the definition as broadly as its
specific language suggests. The first such decision that dealt squarely with the scope of the term
"record" involved documents pertaining to a lottery sponsored by a fire department. Although the
agency contended that the documents did not pertain to the performance of its official duties, i.e.,
fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a
"governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v.
Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to
rights of access granted by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the
purpose for which it relates. This conclusion accords with the spirit
as well as the letter of the statute. For not only are the expanding
boundaries of governmental activity increasingly difficult to draw,
but in perception, if not in actuality, there is bound to be considerable
crossover between governmental and nongovernmental activities,
especially where both are carried on by the same person or persons"
(id.).

In another decision rendered by the Court of Appeals, the Court focused on an agency claim
that it could "engage in unilateral prescreening of those documents which it deems to be outside of
the scope of FOIL" and found that such activity "would be inconsistent with the process set forth in
the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court determined that:

"...the procedure permitting an unreviewable prescreening of
documents - which respondents urge us to engraft on the statute -
could be used by an uncooperative and obdurate public official or
agency to block an entirely legitimate request. There would be no
way to prevent a custodian of records from removing a public record
from FOIL's reach by simply labeling it 'purely private.' Such a
construction, which would thwart the entire objective of FOIL by
creating an easy means of avoiding compliance, should be rejected"
(id., 254).

Further, in a case involving notes taken by the Secretary to the Board of Regents that he
characterized as "personal" in conjunction with a contention that he took notes in part "as a private
person making personal notes of observations...in the course of" meetings. In that decision, the court
cited the definition of "record" and determined that the notes did not consist of personal property but
rather were records subject to rights conferred by the Freedom of Information Law [Warder v. Board
of Regents, 410 NYS 2d 742, 743 (1978)].

Second, significant under the circumstances is the Family Education Rights and Privacy Act
(20 U.S.C. §1232g), which is commonly known as "FERPA". In brief, 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 out that the federal regulations exclude from the definition of "education records" :

"Records of instructional, supervisory, and administrative personnel
and educational personnel ancillary to those persons that are kept in
the sole possession of the maker of the record, and are not accessible
or revealed to any other person except a temporary substitute for the
maker of the record..." [34 CFR 99.3(b)(1)].

Therefore, if, for example, an administrator or teacher prepares notes of a meeting and does not share
or disclose the notes to any other person, FERPA would not apply. In that scenario, even though
FERPA would not apply to the notes, due to the breadth of the definition of "record" in the Freedom
of Information Law, the notes would fall within the scope of that statute. In brief, 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.

Assuming that the Freedom of Information Law governs rights of access rather than FERPA,
two of the grounds for denial would likely be pertinent to an analysis of rights of access to notes or
similar records. Section 87(2)(b) permits an agency to withhold records insofar as disclosure would
constitute "an unwarranted invasion of personal privacy." If, for instance, a parent requests notes
and the notes include reference to several students, I believe that a school district could withhold
those portions pertaining to the students other than the child or children of the person making the
request in order to protect privacy.

The other provision of significance is §87(2)(g), which permits an agency to withhold records
that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that
are reflective of opinion, advice, recommendation and the like could in my view be withheld.

If notes taken at a meeting merely consist of a factual rendition of what was said or what
transpired, they would consist of factual information available under §87(2)(g)(i), except to the
extent that a different ground for denial could be asserted [i.e., §87(2)(b) concerning the protection
of privacy]. Insofar as notes might include expressions of opinion, or conjecture on the part of the
author, they would fall within the scope of the exception.

Third, the Freedom of Information Law does not deal with the retention, disposal or
destruction of records. Relevant with respect to that issue in my view is the "Local Government
Records Law", Article 57-A of the Arts and Cultural Affairs Law, which deals with the management,
custody, retention and disposal of records by local governments. For purposes of those provisions,
§57.17(4) of the Arts and Cultural Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other information-recording
device, regardless of physical form or characteristic, that is made,
produced, executed, or received by any local government or officer
thereof pursuant to law or in connection with the transaction of public
business. Record as used herein shall not be deemed to include
library materials, extra copies of documents created only for
convenience of reference, and stocks of publications."

With respect to the retention and disposal of records, §57.25 of the Arts and Cultural Affairs
Law states in relevant part that:

"1. It shall be the responsibility of every local officer to maintain
records to adequately document the transaction of public business and
the services and programs for which such officer is responsible; to
retain and have custody of such records for so long as the records are
needed for the conduct of the business of the office; to adequately
protect such records; to cooperate with the local government's records
management officer on programs for the orderly and efficient
management of records including identification and management of
inactive records and identification and preservation of records of
enduring value; to dispose of records in accordance with legal
requirements; and to pass on to his successor records needed for the
continuing conduct of business of the office...

2. No local officer shall destroy, sell or otherwise dispose of any
public record without the consent of the commissioner of education.
The commissioner of education shall, after consultation with other
state agencies and with local government officers, determine the
minimum length of time that records need to be retained. Such
commissioner is authorized to develop, adopt by regulation, issue and
distribute to local governments retention and disposal schedules
establishing minimum retention periods..."

In view of the foregoing, records cannot be destroyed without the consent of the
Commissioner of Education, and local officials cannot destroy or dispose of records until the
minimum period for the retention of the records has been reached. I note that the provisions relating
to the retention and disposal of records are carried out by a unit of the State Education Department,
the State Archives and Records Administration. It is suggested that you might contact that agency
to seek guidance regarding the destruction of records.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Records Access Officer
Superintendent