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FOIL-AO-16011

June 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, unless otherwise indicated.

Dear

I have received your letter and materials relating to it concerning the propriety of a denial of your request for certain records of the Bronxville Union Free School District.

You submitted the following two requests to the District:

"Scores on Speech/Language Testing of each student currently taking the course, 7th grade modified Spanish (‘05-‘06 school year) who are listed as ‘foreign language exempt’ on their I.E.P.S. Students need not be identified by name - Date may be presented with names, other identifying date omitted" (emphasis yours).

and

"Scores on Speech/Language Testing of each student in the 7th grade class (‘o5-06 school year) who are both 1) exempt from taking any course in foreign language and 2) currently not enrolled in any foreign language class at the Bronxville Middle School. Identifying information should be omitted" (emphasis yours).

The District’s initial denial was based on the Family Educational Rights and Privacy Act ("FERPA", 20 USC §1232g) and its contention that, even with names redacted, disclosure of the remainder of the information would make students’ identities easily traceable.

In a response by the Superintendent to your appeal, he referred to a distinction in the characterization of the records described in your request, as opposed to the language of the appeal. He wrote as follows:

"Your appeal letter states that you requested ‘disclosure of the speech language scores of all students currently taking Modified Spanish.’ In fact you requested ‘scores of speech/language testing of each student currently taking the course, 7th grade modified Spanish (‘05-‘06 School year who are listed as ‘foreign language exempt’ on their I.E.Ps.’ If, in fact, you wish to receive information on the first group of students (all students in the modified Spanish class, without respect to their exempt status) I suggest that you submit a new request to the Records Access Officer for his consideration" (emphasis his).

Whether the distinction suggested by the Superintendent would involve a difference in rights of access is, from this vantage point, conjectural. However, his comments appear to focus on the key issue concerning your request and rights of access.

The Freedom of Information Law pertains to all records maintained by an agency, such as a school district. In brief, that statute 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 is the initial ground for denial, §87(2)(a), which pertains to records that are "specifically exempted from disclosure by state or federal statute." In this instance, insofar as disclosure of the records in question would or could identify a student or students other than your child, I believe that they must be withheld, for FERPA is a statute that exempts records from disclosure. 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 pursuant to 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 in order to comply with federal law.

The issue, therefore, involves the extent to which disclosure of the record or records of your interest would make a student’s identity easily traceable. As you are aware, in a case dealing with a similar request, the records of test scores were prepared by class, alphabetically, and the school district contended that, even if names of students were deleted, the identities of some students might be made known. In determining the issue, the Appellate Division, Second Department, whose jurisdiction includes Bronxville, ordered that names be deleted from the records and that the records be "scrambled" in order to protect against the possible identification of students [Kryston v. East Ramapo School District, 77 AD 2d 896 (1980)].

In some instances, even if a student’s name or other identifier is deleted, due to unique personal characteristics, his or her identity might be "easily traceable". In others, students’ identities may be easily traceable if there are references to a small number of students. If, as you suggested to me by phone, there are as many as 15 students in the group of your interest, it is my opinion that the deletion of their names from a record or records and "scrambling", as was required in Kryston, would effectively prevent you or others from identifying the students or rendering their identities easily traceable. If that is so, I believe that the District would be required to engage in those actions and provide access to you.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: David Quattrone