May 28, 2008
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.
I have received your letter and the materials attached to it and appreciate your interest in complying with law. You referred to an article published in the Albany Times Union that “leads [you] to believe that [I] had not been apprized regarding the existence of [y]our district policies relating to directory information or the notifications provided by the district to parents regarding their rights to opt out of the sharing of this information.”
In this regard, the Freedom of Information Law, the statute that generally governs access to school district records, 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. Relevant to that matter is §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute, as you are aware, is the federal Family Educational Rights and Privacy Act ("FERPA"; 20 USC §1232g). The focal point of FERPA 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 person eighteen years or over, an “eligible student”, similarly waives his or her right to confidentiality.
An exception to the rule of confidentiality in FERPA involves "directory information", which is defined in the regulations of the Department of Education (§99.3) to include:
"....information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not limited to the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended."
Prior to disclosing directory information, educational agencies must provide notice to parents of students or to eligible students in order that they may essentially prohibit any or all of the items from being disclosed. Specifically, §99.37 of the regulations promulgated pursuant to FERPA state in relevant part that:
“(a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the agency or institution of --
(1) The types of personally identifiable information that the agency or institution has designated as directory information;
(2) A parent’s or eligible student’s right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and
(3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as directory information.”
In short, when a school district adopts a policy on directory information by following the procedures described above, it has the ability to disclose items identified as directory information.
Having reviewed the materials that you forwarded, perhaps most pertinent is Policy 5500 entitled “Student Records”, which states in part that:
“The policy applicable to the release of student directory information may apply to military recruiters, the media, colleges and universities, and prospective employers. Directory information may include the following: the student’s name, address, academic interest, participation in officially-recognized activities and sports, terms of school attendance and graduation, awards received, photograph, art work, and future educational plans. Subsequent to the annual notification of parents concerning directory information, a reasonable amount of time must be allowed for the parent or student to notify school officials that any or all such information should not be released.”
The foregoing does not specify a date by which parents or eligible students may ask that certain items not be released, nor does it indicate that directory information is accessible to the general public.
I also visited the District’s website, and under “policies and notifications”, found reference to FERPA and two paragraphs describing its policy concerning “Public relations use of student data/photos” and “Release of student information to military recruiters.” Neither paragraph identifies the subject matter as directory information, and nowhere was I able to locate a policy that includes each of the elements required by the federal regulations.
Further, at the time that the controversy arose, I was informed that the names and addresses of parents of students were disclosed to the teachers’ union prior to a vote on the budget and the election of board members. Parents’ names are not among the items indicated in the policy statements in the materials that you enclosed or the information provided on the District’s website and, therefore, as I understand the federal regulations, do not fall within the scope of directory information. More importantly, unless an item that is personally identifiable to a student is characterized as directory information or accessible pursuant to consent by a parent, I believe that FERPA forbids disclosure. When discussing the matter with a member of the news media, I was informed that it was contended by the District that disclosure of parents’ identities was permissible, because they are not names of students. Nevertheless, 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, students' names or other aspects of records that would make a student's identity easily traceable, including the names of students’ parents, must in my view be withheld in order to comply with federal law absent receipt of the appropriate consent.
I note, too, that the term “disclosure” is defined in the regulations to mean:
"to permit access to or the release, transfer, or other communication of education records, or the personally identifiable information contained in those records, to any party, by any means, including oral, written, or electronic means."
In sum, it is my opinion that the District’s policy statements concerning directory information are unclear and inadequate, and because parents’ names constitute personally identifiable information relating to students and are not included within the District’s description of directory information, it was contrary to law to disclose parents’ names to the union or any third party absent consent by the parents.
Lastly, because you forwarded your policy regarding access to records and implementation of the Freedom of Information Law, I reviewed it and point out that several aspects of the policies are, in my view, clearly inconsistent with law. For instance, section 1120-E1 includes a heading entitled “Records Not Available for Public Inspection” and lists several categories of records. While some of the records referenced might properly be withheld, others, such as portions of many of those records, such as evaluations, negotiation materials sought after a contract has been signed, employee grievances and disciplinary matters, must be disclosed. Another section of the same policy statement entitled “Records Available to Representatives of the Media” refers to “group information provided, not a response to the salary of a specific individual.” The Freedom of Information Law, however, has since 1978 required that a record be maintained and made available by all agencies that includes the name, public office address, title and salary of every public employee officer or employee of the agency [see §87(3)(b)].
The policy cited above appears under the heading of “subject matter list”, a record that must be prepared by every agency pursuant to §87(3)(c) of the Freedom of Information Law. That provision requires that:
“Each agency shall maintain...a reasonably detailed list by subject matter, of all records in the possession of an agency, whether or not available under this article.”
From my perspective, the law, not an agency’s policy, determines whether or the extent to which records must be disclosed or may be withheld, and the subject matter list should indicate in reasonable detail, by subject matter, the kinds of records in possession of an agency, without regard to whether records are accessible to the public. In my experience, attempts to identify categories of records as accessible or exempt from disclosure lead to inaccuracies and failures to comply with law. It is suggested the District’s policies relating to the Freedom of Information Law be reviewed and reconsidered.
I hope that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.
Robert J. Freeman
cc: Board of Education