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OML-AO-3405

February 8, 2002

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, unless otherwise indicated.

Dear

As you are aware, I have received your letter of January 22 in which you requested an advisory opinion concerning the propriety of certain actions taken by the Chatham School District Board of Education. You indicated that you were prohibited from addressing the Board in public and informed that you could do so only during an executive session. I have also reviewed the statement that you sought to make to the Board.

More specifically, you wrote that:

"I wanted to address the Board because there was a problem at school which the school would not resolve to my satisfaction and I took my son out of school and put him in private school. The environment was unsafe. As soon as I referred to the student who assaulted my son as 'Child A' they went into executive session citing concerns about protecting the child (Child A). Allegedly Child A has sexually abused another student in my son's former class and I think they thought I was going to talk about that but I was not. I asked them to cite the provision of the Open Meetings Law which they were relying upon to take such action and they did not reply. I asked for the school attorney to speak to this but none was present."

In this regard, I offer the following comments.

First, while the Open Meetings Law clearly provides the public with the right "to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (see Open Meetings Law, §100), the Law is silent with respect to public participation. Consequently, by means of example, if a public body does not want to answer questions or permit the public to speak or otherwise participate at its meetings, I do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, I believe that it should do so based upon reasonable rules that treat members of the public equally.

Although public bodies have the right to adopt rules to govern their own proceedings (see e.g., Education Law, §1709), the courts have found in a variety of contexts that such rules must be reasonable. For example, although a board of education may "adopt by laws and rules for its government and operations", in a case in which a board's rule prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable.

I note that there are federal court decisions indicating that if commentary is permitted within a certain subject area, negative commentary in the same area cannot be prohibited. It has been held by the United States Supreme Court that a school board meeting in which the public may speak is a "limited" public forum, and that limited public fora involve "public property which the State has opened for use by the public as a place for expressive activity" [Perry Education Association v. Perry Local Educators' Association, 460 US 37, 103. S.Ct. 954 (1939); also see Baca v. Moreno Valley Unified School District, 936 F. Supp. 719 (1996)]. In Baca, a federal court invalidated a bylaw that "allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter (District employees' conduct or performance)" (id., 730). That prohibition "engenders discussion artificially geared toward praising (and maintaining) the status quo, thereby foreclosing meaningful public dialogue and ultimately, dynamic political change" [Leventhal v. Vista Unified School District, 973 F.Supp. 951, 960 (1997)]. In a decision rendered by the United States District Court, Eastern District of New York (1997 WL588876 E.D.N.Y.), Schuloff, v. Murphy, it was stated that:

"In a traditional public forum, like a street or park, the government may enforce a content-based exclusion only if it is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Perry Educ. Ass'n., 460 U.S. at 45. A designated or 'limited' public forum is public property 'that the state has opened for use by the public as a place for expressive activity.' Id. So long as the government retains the facility open for speech, it is bound by the same standards that apply to a traditional public forum. Thus, any content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Id. at 46."

The court in Schuloff determined that a "compelling state interest" involved the ability to protect students' privacy in an effort to comply with the Family Educational Rights Privacy Act, but that expressions of opinions concerning "the shortcomings" of a law school professor could not be restrained.

Second, the Open Meetings Law requires that meetings of public bodies be conducted in public, unless there is a basis for closing a meeting. I point out that there are two vehicles that may authorize a public body to discuss public business in private. One involves entry into an executive session, and §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. Paragraphs (a) through (h) of §105(1) specify and limit the subjects that may properly be considered in an executive session. The other vehicle for excluding the public from a meeting involves "exemptions." Section 108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not applicable. Pertinent to the issues you raised is §108(3), which exempts from the Open Meetings Law:

"...any matter made confidential by federal or state law." With respect to the subject that you described and similar or related matters, most relevant are the federal Family Educational Rights and Privacy Act ("FERPA", 20 USC §1232g) and the regulations promulgated pursuant to FERPA by the U.S. Department of Education. In brief, FERPA applies to all educational agencies or institutions that participate in grant programs administered by the United States Department of Education. As such, it 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.

The regulations promulgated under 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 foregoing, disclosure of students' names or other aspects of records that would make a student's identity easily traceable must in my view be withheld by an educational agency or institution in order to comply with federal law.

I note that the term disclosure is defined in the regulations to mean:

"to permit access to or the release, transfer, or other communication of education records, or the personally identifiable information contained in those records, to any party, by any means, including oral, written, or electronic means."

In consideration of FERPA, if the Board discusses an issue involving personally identifiable information derived from a record concerning a student, I believe that the discussion would involve a matter made confidential by federal law that would be exempt from the Open Meetings Law.

In the context of the situation as you described it, and based on a conversation with a member of the Board, the Board's concern was that your reference to "Child A", in consideration of the number of children in kindergarten at the school and the size of the community, could make that child's identity either known or "easily traceable." Assuming that to be so, and because there is no right to speak, but rather a limited privilege to do so, it appears that Board could justifiably have asked you refrain from discussing the matter in public. I recognize that neither the Board nor any officer or employee of the District would have been involved in making a disclosure, and that FERPA, therefore, would not have been directly implicated by your presentation. However, in consideration of what the court in Schuloff described as a "compelling state interest", in this instance, an assurance that students' privacy is protected and that your comments would not render a student's identity easily traceable, it appears that the Board could reasonably restrict your ability to offer commentary in public.

From there, if you sought to discuss the matter of Child A with the Board, it appears that any such comments or discussion could occur in private, not necessarily based on any ground for entry into executive session, but rather based on §108(3), which would exempt matters made confidential by law from the coverage of the Open Meetings Law. Further, insofar as a discussion focuses on the performance of a particular teacher or other employee, an executive session might properly be held [see §105(1)(f)].

I note that the foregoing has no bearing on your capacity to speak or disclose information outside the context of a meeting held under the Open Meetings Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Education