August 9, 2007
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.
I have received your letter concerning a request made pursuant to the Freedom of Information Law to the East Meadow School District.
Because the District “ignored [your] hand-delivered FOIL request” made on July 26, you considered its failure to do so a denial of your request and you appealed the denial on August 13. You wrote that it is your belief that the Committee on Open Government “has the power of subpoena” and urged this office to assert its authority, “including the power of subpoena”, to obtain the records that you have requested pursuant to the Freedom of Information Law.
In this regard, the Committee on Open Government is authorized to provide advice and opinions pertaining to the Freedom of Information Law. It is not empowered to compel an agency, such as a school district, to grant or deny access to records. Further, the Committee does not have subpoena power.
As you indicated in the correspondence, §89(3)(a) of the Freedom of Information Law requires that an agency respond to a request with five business days of the receipt of a request. If an agency has failed to do so, an applicant may consider the request to have been denied and may appeal. When an agency receives an appeal, §89(4)(a) requires that the appeal be determined within ten business days of its receipt by granting access to the records sought or fully explaining in writing the reasons for further denial. If an agency fails to do so, the appeal may also be deemed denied, and the person denied access may seek judicial review by initiating a proceeding under Article 78 of the Civil Practice Law and Rules.
I note that some of the records sought likely identify students. If that is so, it is noted that a separate provision of law, the federal Family Educational Rights and Privacy Act (“FERPA”, 20 USC §1232g), pertains to records identifiable to students maintained by educational agencies or institutions. In brief, FERPA prohibits the disclosure of personally identifiable information pertaining to a student unless a parent of a student consents to disclosure. While you may be representing the interests of the students and their family, I believe that a parent would be required to provide consent to disclosure to you in accordance with FERPA prior to the disclosure of personally identifiable information pertaining to a student.
I hope that the foregoing serves to enhance your understanding and that I have been of assistance.
Robert J. Freeman
cc: Leon J. Campo