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FOIL-AO-16558

 

May 9, 2007

E-MAIL

TO:

FROM: Camille S. Jobin-Davis, Assistant 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.

Dear

We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request made to your school district for a “list of the FOIL requests” of your school district. Specifically, you asked “[d]o the names of the persons that FOILed the information have to be redacted?” In this regard, we offer the following comments.

First, 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. If the record you have requested exists, if a list of the FOIL requests has already been compiled, we believe that it should be made available to you, perhaps in part. Similarly, if your request involved copies of all FOIL requests made in the past six months, we believe the school district would be required to provide access to copies, at least in part.

In our view, there are only two instances in which the records at issue may be withheld in part. The first would involve situations in which, due to the nature of their contents, disclosure would be prohibited by state or federal law, and the second would involve situations in which disclosure would constitute an “unwarranted invasion of personal privacy”.

Paragraphs (a) and (b) of §87(2) respectively authorize an agency to withhold records that are “specifically exempted from disclosure by state or federal statute” and when disclosure would constitute “an unwarranted invasion of personal privacy.” Here, the statute that may serve as a basis for denying access in part is the federal Family Educational Rights and Privacy Act (“FERPA”; 20 USC §1232g). The focus of FERPA is the protection of privacy of students and 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' or parents’ names or other aspects of records that would make a student's identity “easily traceable” must in our view be withheld from the public in order to comply with federal law.

Even if FERPA had not been enacted, we believe that personally identifiable information relating to students could be withheld under §87(2)(b) on the ground that disclosure would result in an unwarranted invasion of students’ privacy.

Further, and for purposes of illustration, if a recipient of public assistance seeks records pertaining to his or her participation in a public assistance program, disclosure of the request would itself indicate that he or she has received public assistance. In that case, we believe that identifying details could be deleted to protect against an unwarranted invasion of personal privacy.

As stated by the Court of Appeals, the exception in the Freedom of Information Law pertaining to the protection of personal privacy involves details about one's life "that would ordinarily and reasonably be regarded as intimate, private information" [Hanig v. State Department of Motor Vehicles, 79 NY2d 106, 112 (1992)]. In most instances, a request or the correspondence pertaining to it between the agency and the applicant for records does not include intimate information about the applicant. For example, if a request is made for an agency's budget, the minutes of a meeting of a school board, or an agency's contract to purchase goods or services, the request typically includes nothing of an intimate nature about the applicant. Further, many requests are made by firms, associations, or persons representing business entities. In those cases, it is clear that there is nothing "personal" about the requests, for they are made by persons acting in a business or similar capacity (see e.g., American Society for the Prevention of Cruelty to Animals v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, Nay 10, 1989; Newsday v. NYS Department of Health, Supreme Court, Albany County, October 15, 1991).

Lastly, the Freedom of Information Law is permissive; even in situations in which an agency may withhold records or portions of records, it is not obliged to do so [see Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. Therefore, even if the school district could withhold the records on the ground that disclosure would constitute an unwarranted invasion of personal privacy [see §87(2)(b)], it would not be required to do so.

On behalf of the Committee on Open Government we hope this is helpful to you.

CSJ:tt