December 27, 2006
FROM: Robert J. Freeman, Executive Director
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.
As you are aware, I have received your letter. Please accept my apologies for the delay in response. You referred to a “procedural safeguards notice” sent to parents of students receiving special education which indicates restrictions on disclosure of information pertaining to your child without your consent. You wrote that “[s]chool districts seem to routinely consider this disclosure limitation to be confined to the students’ official CSE file ( housed in the special education office) and cumulative record folder (given to the classroom teacher at the beginning of the school year or housed in the main office).” You have asked whether that practice is consistent with law. In addition, you asked whether consultants employed by a school district may gain access to personally identifiable information pertaining to a student without a parent’s consent or notification, and what penalties there may be for non-compliance.
In this regard, I offer the following comments.
First, the Freedom of Information Law pertains to all records maintained by or for an agency, such as a school district, 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).
Second, 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 (j) of the Law.
Third and perhaps most significant 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 other school official identifiable to your child 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, irrespective of where they are kept or the file designation under which they are stored. I note that the term “disclose” 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 records (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, a teacher or other official 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.
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, for example, 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.
Next, the federal regulations to which reference was made earlier include provisions in §99.31 delineating the conditions in which prior consent is not required to disclose personally identifiable information regarding a student. The only exception, in my opinion, that might authorize disclosure to a consultant appears in subdivision (a)(1), which authorizes disclosure “to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.” I am unaware of whether a consultant may be characterized as a school official.
I believe that the penalty for failure to comply with FERPA, although rarely imposed, involves the removal of federal funding from the educational agency or institution. To obtain additional information or seek to compel compliance, you may contact the Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, S.W., Washington, DC 20202-5920. A variety of information, including the full text of the FERPA regulations, may be obtained by googling “family policy compliance office.”
I hope that I have been of assistance.