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April 5, 1995

 

 

Ms. Shirley Lashinsky
20 East Inwood Lane
Peekskill, NY 10566

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.

Dear Ms. Lashinsky:

I have received your letter of March 26, as well as a copy of your correspondence addressed to Assemblywoman Galef. You raised a series of questions relating to §3020-a of the Education Law and asked that I assist you and the Assemblywoman in acquiring information on the subject.

In this regard, enclosed are copies of §3020-a as it had existed (pages 407-409) and as it was recently amended (pages 147-151). Some of your questions are directly addressed in the law. For instance, §3020-a(3)(c)(i) states in part that a stenographer designated by the Commissioner of Education and compensated by the State Education Department must transcribe the proceedings at hearings. In other cases, since the jurisdiction of this office involves the Freedom of Information Law and the Open Meetings Law, I have neither the authority nor the expertise to respond. In those instances, it is suggested that you contact the State Education Department. Its Office of Counsel has an "attorney on call" to answer questions from 9 a.m. to 1 p.m. That office can be reached by calling (518) 474-6400.

Insofar as your questions relate to the duties of the Committee, I offer the following comments.

First, because a hearing held under §3020-a by a single hearing officer is quasi-judicial in nature, the Open Meetings Law is not applicable. That statute pertains to meetings of public bodies (i.e., boards of education), and quasi-judicial proceedings are exempt from its coverage [see Open Meetings Law, §108(1)]. More importantly, the provision cited earlier, §3020-a(3)(c)(i), states that hearings "shall be public or private at the discretion of the employee."

Second, you raised questions concerning the disclosure of transcripts of §3020-a proceedings as follows:

"Must transcripts of cases involving minors be redacted, and who is responsible for the redaction if such is the case?

"Who has access to the transcripts? Does the public and the press have access to transcripts - redacted or non-redacted, of open or closed hearings?

"If access is permissible, how is it obtained - through what procedures?"

In this regard, the Freedom of Information Law pertains to all agency records, and each agency is required to promulgate procedural rules and regulations to implement that statute in a manner consistent with its terms and the general regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401).

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. When records are accessible under the Freedom of Information Law, they are available to any person, irrespective of one's status or interest [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY 2d 75 (1984)]. To the extent that §3020-a proceeding is conducted in public, I believe that a transcript of the proceeding would be available. In short, none of the grounds for denial would be applicable in that circumstance.

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.

From my perspective, two 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."

Further, the federal regulations promulgated under the 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 definition of "personally identifiable information", portions of records must be kept confidential even if they pertain to a student's parent who appears at a hearing, for the disclosure of the parent's name would identify the student.

I point out that 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..."

Nevertheless, 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, to the extent that 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. Therefore, insofar as transcripts include information identifiable to students, I believe that those portions must be withheld in order to comply with federal law.

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).

With respect to the employees charged under §3020-a, 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 following a private hearing 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)]. Enclosed is a copy of the regulations promulgated under the FERPA for your review. I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Hon. Sandra Galef, Member of the Assembly
Superintendent, Hendrick Hudson Central School District