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February 10, 1994

 

 

Mr. Julio Infiesta
417 Whitehall Street
Lynbrook, NY 11563

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. Infiesta:

As you are aware, I have received your letter of January 9 and
related correspondence.

In conjunction with a dispute concerning the educational
placement of your child in the West End School in Lynbrook, your
wife directed a request under the Freedom of Information Law to the
Assistant Superintendent of the Lynbrook Union Free School District
for the following records:

"1. Copies of all report cards for the
children that skipped 4th grade math.

2. Copies of all report cards for those
children who are in the enrichment group.

3. Copies of all report cards for those
children who are in the high average group.

4. PEP scores for all the above children."

Your wife expressed the understanding that the information would be
"provided in a sanitized format."

In response to the request, you were informed that the Freedom
of Information Law "provides for access to records and information
routinely kept on file by a school or the district office", and
that "[r]eport cards of students are considered confidential
information and 'sanitized versions do not exist."

You have sought assistance in obtaining the information. In
this regard, I offer the following comments.

First, the Freedom of Information Law pertains to all agency
records, whether they are "routinely kept on file", unique or
otherwise. I point out that §86(4) of that statute defines the
term "record" to mean:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based upon the foregoing, report cards and other records reflective
of students' test scores that are maintained by a school district
would, in my view, clearly constitute "records" subject to rights
conferred by the Freedom of Information Law.

Second, 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 §87(2)(a) through (i) of the Law. It is noted
that the introductory language of §87(2) refers to the authority to
withhold "records or portions thereof" that fall within the grounds
for denial that follow. The phrase quoted in the preceding
sentence indicates that there may be instances in which a single
record may contain both accessible and deniable information.
Moreover, that phrase imposes an obligation on an agency to review
records sought in their entirety to determine which portions, if
any, may justifiably be withheld. When certain aspects of records
may properly be withheld, they may be deleted, and the remainder
must be disclosed.

Third, relevant to the matter is the initial ground for
denial, §87(2)(a), which pertains to records that are "specifically
exempted from disclosure by state or federal statute." In this
instance, insofar as disclosure of the records in question would or
could identify a student or students other than your child, I
believe that they must be withheld. A statute that exempts records
from disclosure is the Family Education Rights and Privacy Act (20
U.S.C. section 1232g), which is commonly known as the "Buckley
Amendment". In brief, the Buckley Amendment applies to all
educational agencies or institutions that participate in grant
programs administered by the United States Department of Education.
As such, the Buckley Amendment 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 the Buckley
Amendment 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 in my view be withheld in order to comply with
federal law.

I am unaware of the numbers of students whose identities would
appear in the four categories of your request. If there are few
students who "skipped 4th grade math", it is possible that their
identities may be known even if their names or other personal
details are deleted from records. In that event, since the
deletion of identifying details would not serve to protect
students' privacy, the records, in my view, could be withheld in
their entirety. On the other hand, if the number of students
identified in a category of records sought is sufficiently large
that students could not be identified following the deletion of
names or other details, I believe that the records must be
disclosed with appropriate redactions.

I direct your attention to a decision rendered by the
Appellate Division, Second Department, which includes Nassau County
within its jurisdiction, that appears to have dealt with a
situation similar in some respects to that described in your
correspondence. In Kryston v. Board of Education, East Ramapo
School District [430 NYS 2d 688, 77 AD 2d 896 (1980)], the court in
presenting the facts stated that:

"The petitioner, a parent of a student in the
respondent school district, seeks disclosure
of certain standardized reading and
mathematics test scores of children who
attended grade 3 in the El Dorado School
during 1977-1978 school year. Specifically,
the petitioner expressed an interest in the
scores of six tests. Of these, the scores on
four were tabulated and recorded
alphabetically by student surname. The
remaining test scores were not compiled in
alphabetical order.

"When respondents refused to release any of
the scores, the petitioner instituted a
proceeding pursuant to CPLR Article 78, inter
alia, to compel disclosure. The court granted
the petition in part by directing, inter alia,
that the respondents release those scores not
compiled in alphabetical order after first
deleting the names of the students."

The lower court, however, determined to uphold the denial as it
involved records that contained names listed alphabetically because
some students, particularly those whose names are at the beginning
and the end of the alphabet, might be identified, even if names
were deleted. Nevertheless, the Appellate Division ordered a
"rearranging or 'scrambling' the test scores so as to change the
order in which they are listed" (id., 689), stating that:

"Disclosure of the test scores here, in a
'scrambled' order and with names deleted,
would protect the privacy of the students,
provide the petitioner with the records she
seeks, and impose no onerous burden upon the
agency. It would, therefore, be fully
consistent with the policy considerations and
objectives underlying the Freedom of
Information Law as well as appropriate Federal
statutes" (id., 690).

Based on the foregoing, and subject to the qualifications
discussed earlier, I believe that the District must disclose the
records sought.

In an effort to assist you, copies of this opinion will be
sent to District officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm
cc: Board of Education
John A. Beyrer, Assistant Superintendent
Nola Bacci, Principal