September 7, 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.
I have received your letter and the materials relating to it. In brief, you wrote that your son’s application to participate in a peer adviser program at Mamaroneck High School was rejected. In an attempt to learn the reason for the rejection, you were informed that "the selection process consisted of a ‘survey’ distributed to the entire faculty soliciting ‘anonymous’ comments about student applicants." When you requested the survey responses pertaining to your son, the request was denied on the ground that anonymity had been promised to teachers. Additional requests were made, and the School District’s "records access manager" also denied access, indicating that "the survey is not part of Zachary’s educational record, but rather a part of an administrative process the high school utilizes in selecting the....advisors." The denial of the request was later affirmed by the Superintendent.
From my perspective, the law requires that the records of your interest be made available to you. In this regard, I offer the following comments.
First, although the New York Freedom of Information Law generally governs with respect to rights of access to records of a school district, in this instance, I believe that the governing statute in the context of the situation that you described is a federal law. Specifically, most 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.
A 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, and most importantly in relation to this matter, if a parent of a student under the age of eighteen requests records identifiable to his or her child, the parent ordinarily will have rights of access to those portions of records that are personally identifiable to his or her child.
The regulations promulgated by the United States Department of Education (34 CFR Part 99) provide direction which, in my view, is contrary to the response offered by the District in denying your request. Section 99.10 provides a parent of a minor student with the right to inspect and review the education records pertaining to his or her child, "except as limited under §99.12." The limitations in §99.12 relate to education records maintained by "postsecondary institutions", such as colleges and universities, rather than elementary, middle or high schools. Section 99.3 defines the phrase "education records" and states, in its entirety, that
"(a) The term means 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.
(b) The term does not include:
(1) 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;
(2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of §99.8.
(3)(i) Records relating to an individual who is employed by an educational agency or institution, that:
(A) Are made and maintained in the normal course of business;
(B) Relate exclusively to the individual in that individual’s capacity as an employee; and
(C) Are not available for use for any other purpose.
(iii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.
(4) Record on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are:
(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;
(ii) Made, maintained, or used on in connection with treatment of the student; and
(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, ‘treatment’ does not include the remedial educational activities that are part of the program of instruction at the agency or institution; and
(5) Records that only contain information about an individual after he or she is no longer a student at that agency or institution."
In my opinion, none of the exclusions listed in subdivision (b) would apply or serve to remove the records at issue from the scope of "education records." If that is so, to comply with federal law, I believe that the records must be made available to you. I point out, too, that §99.20 and the ensuing related provisions provide a parent of a minor child with right to seek to amend education records that are "inaccurate, misleading, or in violation of the student’s rights of privacy."
Lastly, §89(6) of the Freedom of Information Law states that nothing in that law can serve to abridge rights of access conferred by any other provision of law. Therefore, even though portions of the records at issue might fall within exceptions to rights of access appearing in the Freedom of Information Law, those exceptions cannot be asserted when a different law, in this instance, FERPA, grants rights of access.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education