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FOIL-AO-15747

January 12, 2006

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

We are in receipt of your December 21, 2005 request for an advisory opinion concerning the application of the Freedom of Information Law to requests for records relating to your child and other students, made to the Marcellus School District. Your request, for copies of correspondence between one group of parents and District was denied, despite your joint request with parents of all but one of the students involved. We are in agreement with the District’s denial of your request and offer the following comments in that regard.

By way of background, 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 is the first ground for denial, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is the federal Family Educational Rights and Privacy Act ("FERPA", 20 USC §1232g). The focal point of FERPA 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 the right to confidentiality, or unless a student eighteen years or over similarly waives his or her right to confidentiality. The 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 § 99.3).

Based upon the foregoing, references to students' names, parents’ names, or other aspects of records that would make a student's identity easily traceable must in our view be withheld in order to comply with federal law unless, in the context of the facts presented, the parents of all the identifiable students waive confidentiality.

Consequently, insofar as the records you describe are communications between parents and the District that would identify a student other than those of parents who have signed on to your joint request, it is our opinion that the District must withhold the records.
We hope this helps to clarify your understanding of the matter.

Sincerely,

Camille S. Jobin-Davis
Assistant Director

CSJ:tt