January 4, 2007
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 information presented in your correspondence, unless otherwise indicated.
As you are aware, I have received a variety of material from you concerning requests for invoices maintained by the South Orangetown School District. The invoices involve fees paid to a consultant for services rendered to particular students. Although the District disclosed the invoices, you wrote that “[a]ll the names were redacted” and that “the invoices have not been broken down in any way.” The Superintendent indicated that the records sought do not include “information disaggregated by individual student” and that, therefore, “we redacted all of the names of the students from the information as I understand we are able to do according to the regulations.”
Based on my understanding of the matter, the difficulty that you have encountered relates to fact that the District does not maintain records in which you are interested in the form in which you are seeking them. In a conversation with the Superintendent, I was informed that invoices pertaining to consultants in this context do not include any breakdown, by student, of services rendered; rather, the invoices may refer to several students without specificity regarding the time or services provided to any particular student.
In this regard, I offer the following comments.
First, the Freedom of Information Law does not deal with the manner in which records must be kept, nor does it include requirements concerning the content of records. That statute pertains to existing records maintained by or for an agency, such as a school district, and §89(3) states in relevant part that an agency is not required to create a record in response to a request. If no record exists containing the information sought, the District would not be required by the Freedom of Information Law to prepare a new record on your behalf.
In short, there appears to be no record that specifies the amount of time that the consultant spent with any particular student or the amount billed for working with any particular student.
Second, notwithstanding the foregoing, I believe that you have the right to gain access to invoices that include your child’s name, so long as disclosure of any such records would not render the identity of any other student easily discernible. Pertinent are the federal Family Educational Rights and Privacy Act ("FERPA", 20 USC §1232g) and the regulations promulgated pursuant to FERPA by the U.S. Department of Education (34 CFR Part 99). In brief, FERPA applies to all educational agencies or institutions that participate in grant or loan programs administered by the United States Department of Education. As such, it 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. Concurrently, FERPA provides rights of access to education records to a parent of a student under the age of eighteen.
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 Section 99.3).
Based upon the foregoing, disclosure of students' names or other aspects of records that would make the identity of a student other than your child easily traceable must in my view be withheld in order to comply with federal law.
If information pertaining to students other than your child can be redacted from the invoices or other records in a manner that ensures that their identities are not “easily traceable”, I believe that the District would be required to disclose the remainder of those records, including those portions that identify your child. It is reiterated, however, that disclosure any such records would not specify the amount of time spent working with your child or the monies expended by the District relating to your child specifically. On the other hand, if redactions of names of students other than your child would not serve to adequately protect their privacy in a manner consistent with federal regulations, I believe that all identifying information, including information pertaining to your child, could be redacted.
I hope that the foregoing serves to clarify your understanding and that I have been of assistance.
cc: Joseph Zambito