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FOIL-AO-16732

August 13, 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 facts presented in your correspondence.

Dear

I have received your letter and the materials attached to it. You have sought assistance in your efforts in gaining access to records of the New York City Department of Education.

In brief, you wrote that you are employed by the Department as a teacher and the subject of an inquiry involving alleged corporal abuse of a student. You indicated, however, that the student assaulted you. Although the principal of your school did not interview you regarding the incident and you have not been charged, you have been reassigned, and the matter is the subject of an investigation by the Department’s Office of Special Investigations. Having requested records relating to the matter, the Department denied access on the ground that the records sought constitute intra-agency materials that may be withheld pursuant to §87(2)(g) of the Freedom of Information Law.

In this regard, I offer the following comments.

In brief, 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.
From my perspective, two or perhaps three of the grounds for denial may be pertinent in determining rights of access.

Section §87(2)(a) pertains to records that are "specifically exempted from disclosure by state or federal statute." A statute that exempts records from disclosure is the Family Education Rights and Privacy Act (“FERPA”; 20 U.S.C. section 1232g). In brief, FERPA applies to all educational agencies or institutions that participate in 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. Further, 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 ordinarily be withheld in order to comply with federal law.

I note, however, the definition of “education record” specifically excludes:

"Records of a law enforcement unit of an educational agency or institution, but only if education records maintained by the agency or institution are not disclosed to the unit, and the law enforcement records are -

(i) Maintained separately from education records;

(ii) Maintained solely for law enforcement purposes; and

(iii) Disclosed only to law enforcement officials of the same jurisdiction..."

In addition, §99.8(b)(1) of the federal regulations states that:

"Records of a law enforcement unit means those records, files, documents, and other materials that are -

(I) Created by a law enforcement unit;

(ii) Created for a law enforcement purpose; and

(iii) Maintained by the law enforcement unit."

Based on the foregoing, if the records in question could be characterized as those of a law enforcement unit, the FERPA likely would not serve as a basis for withholding the records. In that case, the records would be subject to whatever rights exist under the Freedom of Information Law.

Insofar as FERPA does not apply and the Freedom of Information Law is the governing statute, relevant would be §87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” I would conjecture that portions of the records identifiable to the student or others could be withheld under that provision.

Finally, as indicated by the Department, §87(2)(g) likely serves as a basis for denying access to some aspects of the records. That provision 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.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Michael Best
Susan Holtzman