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October 17, 1996

 

 

James B. Bacon, Esq.
Bacon & Bernz
100 Little Britain Road
Newburgh, NY 12550

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 Mr. Bacon:

I have received your letter of October 4 in which you requested an advisory opinion concerning access to certain records.

You wrote that "[a] teacher is requesting that the school district release the content of certain letters that were sent by parents to the school district allegedly complaining about the teacher's conduct." You have asked "whether or not the teacher would be entitled to said letters if deletions were made to protect the children's identity as well as the parent's identity."

In this regard, 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.

Relevant under the circumstances 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, 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.

Depending on the content of the records, in some instances it is possible that students' or parents' identities may be "easily traceable" even if names or other personal details are deleted. In those cases, it is likely that records could be withheld in their entirety. On the other hand, if students could not be identified following the deletion of names or other details, I believe that the records should be disclosed after the appropriate deletions are made.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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