December 22, 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 facts presented in your correspondence.
I have received your letter of November 26 in which you raised an issue concerning access to a certain record.
You wrote that your firm represents a school district that participated in special education mediation pursuant to §4404-a of the Education Law, and that the parents and the district entered into a settlement agreement that resolved all claims. Some two months following the execution of the settlement, the parents’ former attorney, citing the Freedom of Information Law, requested "a copy of the Settlement Agreement entered into by the district on [date] with [parents] as a result of mediation in which [a different lawyer] represented the district." It is the district’s position that it is "prohibited from providing a copy of the settlement agreement, even in redacted form, to the requesting party."
I agree with the district’s contention, and in this regard, I offer the following comments.
First, 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.
Relevant in the context of the facts presented is §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute, as you suggested, is the federal Family Educational Rights and Privacy Act ("FERPA"; 20 USC §1232g). In brief, that statute generally forbids public disclosure of personally identifiable information pertaining to a student without the consent of a parent of the student.
The regulations promulgated by the U.S. Department of Education to implement FERPA define the phrase "education records" 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."
From my perspective, the settlement agreement clearly constitutes an education record.
Further, the regulations 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; the former attorney 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,§87(2)(a) of the Freedom of Information Law. Additionally, since the record at issue relates to a student with a disability, aside from FERPA, I believe that the record may properly be withheld under §87(2)(b) of the Freedom of Information Law on the ground that disclosure would constitute "an unwarranted invasion of personal privacy."
I hope that I have been of assistance.
Robert J. Freeman