November 15, 2012
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.
We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Buffalo Public Schools. Specifically, you asked whether a school district has authority to deny a request for a redacted videotape of incidents that occurred on a school bus, based on the Family Educational Rights and Privacy Act (FERPA).
In this regard, 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 (l) of the Law. From our perspective, there are two or perhaps three of the grounds for denial that may be pertinent in determining rights of access.
First, §87(2)(a) pertains to records that are “specifically exempted from disclosure by state or federal statute.” FERPA (20 U.S.C. section 1232g), a federal statute that exempts records
from disclosure, applies to all educational agencies or institutions that participate in grant programs administered by the United States Department of Education, including the Buffalo Public Schools.
The focal point of the Act is the protection of privacy of students. It provides, in general, that any “education record” 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 definition of “education record” is broad, and includes “those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution.” (34 CFR §99.3)
The definition of “education record”; however, 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...” (34 CFR §99.3)
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, it is likely that FERPA would not serve as a basis for withholding.
In the one related New York case that we know of involving an interpretation of the definition of “education record”, the court held that FERPA is not meant to apply to video tape recordings made to maintain the physical security and safety of the school building and which do not pertain to the educational performance of the students captured on the tape. Rome City School District v Grifasi, 10 Misc3d 1034, 806 NYS2d 381 Oneida County, 2005.
In the event that FERPA does not apply and the Freedom of Information Law is the governing statute, the second relevant provision of FOIL would be §87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” It is our opinion that portions of the records identifiable to particular students, due to their age, could be withheld under that provision.
Third, we emphasize that the introductory language of §87(2) refers to the authority to withhold “records or portions thereof” that fall within the scope of the exceptions that follow, and there must be an evaluation of whether the agency has the means to redact video recordings with reasonable effort.
In our view, the phrase “records or portions thereof” evidences recognition on the part of the Legislature that a single record or report might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, we believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
The Court of Appeals, the state’s highest court, expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY2d 267 (1996)], stating that:
“To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[b]). As this Court has stated, ‘[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld’ (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)” (Gould, at 275).
Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that certain reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception separate from that referenced in response to your requests. The Court, however, wrote that: “Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree” (id., 276), and stated as a general principle that “blanket exemptions for particular types of documents are inimical to FOIL's policy of open government” (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:
“...to invoke one of the exemptions of section 87(2), the agency must articulate ‘particularized and specific justification’ for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)” (id.)
In the context of your request, the Buffalo Public Schools has engaged in a blanket denial of access in a manner which, in our view, may or may not be appropriate. Based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by the agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: “Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made” (id., 277; emphasis added). Further, the Appellate Division, Second Department has held that deletion of portions of a record is appropriate in order to protect student identities pursuant to FERPA. Hendrick Hudson Central School District v. Falinski, Appellate Division, Second Department, NYLJ, May 15, 1995, Order affirmed later by Appellate Division, NYLJ, October 22, 1996.
Finally, and from a practical standpoint, we note that from our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.” In 2008, the Legislature enacted a series of amendments to FOIL that codified judicial decisions requiring agencies to utilize the capabilities of its computer hardware and software in response to requests for access. While the statute still requires that records be “reasonably described,” §89(3)(a) states in part that “[w]hen an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.” Additionally, agencies are required to receive and respond to requests via email when they have “reasonable means available”. §89(3)(b).
Accordingly, it is our opinion that if an agency such as the Buffalo Public Schools has the ability to redact video with reasonable effort, and if such record is required to be made available at least in part, pursuant to the Freedom of Information Law, it would be required to provide a redacted version of the requested video recording.
We hope that this is helpful.