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July 27, 1993

 

 

Mr. Daniel Petigrow
Anderson, Banks, Curran & Donoghue
Attorneys & Counsellors at Law
61 Smith Avenue - P.O. Box 240
Mount Kisco, N.Y. 10549-0240

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 Mr. Petigrow:

I have received your letter of July 21 and the materials
attached to it.

You have requested an advisory opinion:

"on whether a school district is obligated
under the Freedom of Information Law, and to
what extent, to release the transcript and
complete record, including exhibits, from a
proceeding held pursuant to §3020-a of the
Education Law wherein: (i) students testified
at the hearing and exhibits that were
introduced contain numerous references to
students' names; and (ii) the determination
that was made sustained some, but not all of,
the charges preferred against the teacher."

In this regard, I 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 section 87(2)(a) through (i) of the Law. It is
emphasized that the introductory language of §87(2) refers to the
authority to withhold "records or portions of thereof" that fall
within the scope of the grounds for denial that follow. The phrase
quoted in the preceding sentence indicates that a single record or
report, for example, might include both accessible and deniable
information. In addition, that phrase in my opinion imposes an
obligation upon an agency to review requested records in their
entirety to determine which portions, if any, may justifiably be
withheld and to disclose the remainder.

Second, from my perspective, three of the grounds for denial
may be relevant to an analysis of rights of access to records in
question.

Section 87(2)(a) pertains to records that "are specifically
exempted from disclosure by state or federal statute." One such
statute, the federal Family Educational Rights and Privacy Act
("FERPA"; 20 U.S.C. §1232g), generally requires that "education
records" identifiable to students be kept confidential with respect
to the public. The regulations promulgated by the U.S. Department
of Education define the phrase "education records" (34 CFR 99.3) to
mean:

"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."

The regulations exclude from the scope of education records:

"Records relating to an individual who is
employed by an educational agency or
institution, that -
(A) Are made and maintained in the normal
course of business..."

In my opinion, records prepared in conjunction with a proceeding
conducted pursuant to §3020-a of the Education Law would not have
been made and maintained in the ordinary course of business. If
that is so, insofar as the records in question are identifiable to
particular students, I believe that they would constitute education
records that are specifically exempted from disclosure by means of
a federal statute, the FERPA.

Also relevant is §87(2)(b) of the Freedom of Information Law,
which authorizes an agency to withhold records to the extent that
disclosure would constitute "an unwarranted invasion of personal
privacy." Even if the FERPA is inapplicable, I believe that
disclosure of portions of the records identifiable to students
could be withheld on the basis of §87(2)(b).

Further, although the standard concerning privacy is flexible
and may be subject to conflicting interpretations, the courts have
provided substantial direction regarding the privacy of public
employees. It is clear that public employees enjoy a lesser degree
of privacy than others, for it has been found in various contexts
that public employees are required to be more accountable than
others, and the courts have found that, as a general rule, records
that are relevant to the performance of a public employee's
official duties are available, for disclosure in such instances
would result in a permissible rather than an unwarranted invasion
of personal privacy [see e.g., Farrell v. Village Board of
Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe,
59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County
of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C.
Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981;
Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v.
City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of
State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v.
Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ,
Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].
Conversely, to the extent that records are irrelevant to the
performance of one's official duties, it has been found that
disclosure would indeed constitute an unwarranted invasion of
personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty.,
NYLJ, Nov. 22, 1977].

Several of the decisions cited above, for example, Farrell,
Sinicropi, Geneva Printing, Scaccia and Powhida, dealt with
situations in which determinations indicating the imposition of
some sort of disciplinary action pertaining to particular public
employees were found to be available. However, when allegations or
charges of misconduct have not yet been determined or did not
result in disciplinary action, the records relating to such
allegations or unsubstantiated charges may, in my view, be
withheld, for disclosure would result in an unwarranted invasion of
personal privacy [see e.g., Herald Company v. School District of
City of Syracuse, 430 NYS 2d 460 (1980)]. Therefore, to the extent
that charges were dismissed or were found to be without merit, I
believe that those charges and records relating to them may be
withheld.

Lastly, §87(2)(g) states that an agency may 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.

Records prepared in conjunction with the proceeding would in
my view constitute intra-agency materials. Insofar as they consist
of opinions, advice, conjecture, recommendations and the like
offered by public officers or employees, I believe that they could
be withheld. For instance, opinions offered by public employees
who testified could in my view be withheld. However, I believe
that factual information would be available, except to the extent,
under the circumstances, that disclosure would result in an
unwarranted invasion of personal privacy or would otherwise be
exempted from disclosure by statute. A final agency determination,
insofar as it includes findings of misconduct, would in my opinion
be accessible.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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