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 FOIL-AO-14667

May 5, 2004

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

As you are aware, I have received your letter and the correspondence relating to it. The matter relates to "[y]our rights as parents with respect to accessing [y]our daughter’s records from the Lake George Central School District."

In brief, your daughter qualified to apply for selection to the District’s chapter of the National Honor Society. You wrote that she is in the top ten percent of her class, "has a full resume of activities and service to school and community, and to [y]our knowledge has no discipline record or other maladjustments." Despite her stellar record, her application was rejected, and although the reasons were given to you verbally based on faculty evaluations, you did not feel that those comments accurately reflected your daughter’s personality or attitude. Following an attempt to appeal the decision, you were told "that all records had been destroyed according [to] the school’s regular, routine, long-standing procedure of immediately purging all materials after student notification." You referred to the NYS Records Retention Deposition Schedule, which indicates that "National Honor Society student selection records’ must be retained for "1 year after end of school year."

You have questioned the propriety of the District’s actions and raised a variety of questions. In this regard, I offer the following comments.

First, the Freedom of Information Law, the statute within the advisory jurisdiction of this office, does not deal with the preservation or destruction of records. More relevant 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.

Reference was made in a response to your attorney by the President of the Board of Education to Decision No. 14,889 rendered by the Commissioner of Education, which also pertained to an application to the National Honor Society that was rejected. While I must, in good faith, respect the Commissioner’s decision, I do not understand how the provisions of the Arts and Cultural Affairs could have been essentially ignored. The decision states that:

"Respondent [the school district] asserts that destruction of the evaluative materials is routine practice in the district, and complies with NHS procedures as set forth in the NHS Handbook.. Respondent used the 15th Edition of the NHS Handbook (1997), which respondent indicates is the most recent edition. The Handbook at pp.90-91 recognizes that most faculty councils do not retain their working papers after making the final selection decisions. This procedure is thus not in violation of NHS procedures and requirements, and I decline to order any changes to this procedure."

From my perspective, the guidelines issued by the National Honor Society are not law and are not binding. In my opinion, what should be controlling are provisions promulgated by the State Education Department. Again, you referred to a portion of the Records Disposition Schedule ED-1 that pertains to kinds of records at issue and prescribes the retention period as follows:

"National Honor Society student selection records including but not limited to information on qualifications of eligible students, teacher ratings of students, school’s honor society committee voting records and list of students selected for membership: 1 year after end of school year."

While the decision rendered by the Commissioner did not refer to the portion of the schedule quoted above and did not reject it, the retention period of one year after a school year would appear to have been applicable in the context of the situation that you described.

Absent the ability to gain access to the records that you have requested, there appears to be little or no accountability relative to the Honor Society selection process.

Second, the Freedom of Information Law pertains to existing records, and §89(3) states in part that an agency, such as a school district, is not required to create a record in response to a request. Therefore, insofar as records that you have sought no longer exist, the Freedom of Information Law would not apply. I note that when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) also provides that in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search." If you consider it worthwhile to do so, you could seek such a certification.

Third, the Freedom of Information Law pertains to all existing records maintained by or for an agency 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)].

Also pertinent 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)].

In consideration of the direction provided by FERPA, any notes or other records prepared by a teacher or administrator identifiable to your daughter that have been revealed or disclosed to any other person would in my view constitute education records that would be available to you as a parent. I note that the term "disclosure" is defined in the federal regulations to include not only releasing a written document, but also verbally indicating the content of a written document. In addition, if, upon review of education records, you as a parent consider the contents to be inaccurate, you have the right to request to amend the record (34 C.F.R. §99.20 and 21). If the request is denied, you would have the right to a hearing.

On the other hand, 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, pertinent to an analysis of rights of access to notes or similar records would be §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.


I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt
cc: Board of Education
Louis Buck
Michael J. Muller