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FOIL-AO-14307

October 27, 2003

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, unless otherwise indicated.

Dear

I have received your letter of October 3 and the materials attached to it, as well as a letter from Susan N. Burgess. Ms. Burgess, an attorney, submitted a request pursuant to the Freedom of Information Law that is the subject of your request for an advisory opinion.

Ms. Burgess requested a record or records that include the "names and addresses of all residents of the Fairport Central School District", and you wrote that she "represents parents of children with disabilities and has represented parents of such children who reside in the Fairport School District." She also requested "[B]illing statements, redacted as legally appropriate" submitted by a named law firm "pertaining to all legal matters that involve the family of *** and ***, including matters pertaining to their [child], from September 1, 1999 to present."

The request for names and addresses was withheld based on your contention that the record or records would be used for a commercial purpose and that, therefore, disclosure would constitute "an unwarranted invasion of personal privacy" pursuant to §89(2)(b)(iii) of the Freedom of Information Law. The request for billing statements was denied because the request names the family that is the subject of the records. You wrote that "[r]edaction of identifying details would not protect disclosure of the student's identity since all of the requested records pertain solely to the student and/or the Family." For that reason, you considered the statements to constitute education records that cannot be disclosed absent the consent of a parent pursuant to the Family Educational Rights and Privacy Act ("FERPA", 20 USC §1232g).

Ms. Burgess indicated that she is seeking the names and addresses "to help facilitate"a free seminar. She wrote that she does "not know what a commercial purpose is" and that:

"As an attorney, I cannot hold myself out as representing anyone at this seminar. I will not be signing a retainer agreement and entering into relationships with attendees for which I am paid a fee as a prerequisite to attendance. What I will be doing is seeking to educate parents and other residents about special education in their District, provide them with sample forms and letters and other handouts they can use, and generally help them to learn how to advocate for themselves and their children within the school setting. Whether there are legal problems that already exist and whether anyone will decide to contact any lawyer is speculative and something over which I have no control. I do not consider that a commercial, but an educational purpose, one of hundred of topics that can be imagined and about which people might seek to educate the public."

In my view, the denial of access to the list of names and addresses was consistent with law. While the phrase "commercial purpose" is not defined, it does not appear that Ms. Burgess' goals are purely eleemosynary. On the contrary, it would seem that the seminar would be held, at least in part, to encourage members of the public to seek her services as an attorney.

With respect to the Freedom of Information Law, by way of background, in general, when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the use of the records, is ordinarily irrelevant.

The only exception to the principles described above involves the protection of personal privacy. By way of background, §87(2)(b) of the Freedom of Information Law permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Further, §89(2)(b) of the Law provides a series of examples of unwarranted invasions of personal privacy, one of which pertains to:

"sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes" [§89(2)(b)(iii)].

The provision quoted above represents what might be viewed as an internal conflict in the law. As indicated earlier, the status of an applicant or the purposes for which a request is made are irrelevant to rights of access, and an agency cannot inquire as to the intended use of records. However, due to the language of §89(2)(b)(iii), rights of access to a list of names and addresses, or equivalent records, may be contingent upon the purpose for which a request is made [see Federation of NYS Rifle and Pistol Clubs, Inc., v. New York City Police Department, 73 NY 2d 92 (1989); Scott, Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 NY 2d 294, 491 NYS 2d 289 (1985); Goodstein v. Shaw, 463 NYS 2d 162 (1983)].

In a case involving a list of names and addresses in which the agency inquired as to the purpose of which the list was requested, it was found that an agency could make such an inquiry. Specifically, in Golbert v. Suffolk County Department of Consumer Affairs (Supreme Court, Suffolk County, September 5, 1980), the Court cited and apparently relied upon an opinion rendered by this office in which it was advised that an agency may appropriately require that an applicant for a list of names and addresses provide an indication of the purpose for which a list is sought.

In a decision cited earlier, Federation of NYS Rifle and Pistol Clubs, a not-for-profit corporation sought a list of names and addresses in order to send its circular, which included a statement of membership rates and a membership application. In that decision, the Court of Appeals held that membership solicitation constituted a fund-raising purpose and upheld the agency's denial on that basis.

While Ms. Burgess may be offering information and materials, with or without her name, address and phone number on those materials, implicit in the presentation would be her expertise and availability as an attorney to provide legal services to parents. In my view, that kind of activity is, at least in part, commercial, and therefore, the request is for a commercial purpose and may be denied.

With respect to the other request, Ms. Burgess wrote that:

"District attorney billing statements do not belong in a child's educational file and cannot be shielded from disclosure by putting them in the educational file and referring to them as education records."

As I understand the regulations promulgated by the U.S. Department of Education pursuant to FERPA, that contention is inaccurate. There is nothing in the regulations pertaining to the location or placement of records in determining whether they are "education records" subject to FERPA. In 34 CFR §99.3, the phrase "education records" is defined to include those records that are:

"(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution."

In short, a billing record maintained by or for the District that is personally identifiable to a student would, in my opinion, constitute an education record falling within the coverage of FERPA that cannot be described without parental consent.

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.

In this instance, since the request was made in relation to a named student and/or family, the deletion of personally identifiable details would be meaningless; Ms. Burgess would know the identity of the student to whom the records pertain. That being so, I believe that records would be exempt from disclosure under FERPA and, thereby, under §87(2)(a) of the Freedom of Information Law concerning records that "are specifically exempted from disclosure by state or federal statute."

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Susan N. Burgess