June 5, 1995
Ms. Patricia Meisenburg
6735 Shawnee Road
N. Tonawanda, NY 14120
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. Meisenburg:
I have received your letter of April 18, which, for reasons unknown, did not reach this office until May 15. Please accept my apologies for the delay in response.
As a member of the Board of Starpoint Central School, you wrote that "we seem to meet in closed sessions for reasons other than are outlined in the NYS School Law Manual." By means of example, you referred to "a closed meeting to discuss whether a student will be permitted to attend Starpoint after moving from the district." You questioned the District's attorney on the matter, and he indicated that the meeting could be closed in conjunction with provisions of law that are attached to your letter. You have asked whether I believe that the attorney's position is correct.
In this regard, I offer the following comments.
First, since the School Law manual is not the law itself, I have enclosed a copy of the Open Meetings Law for your review.
Second, 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. Section 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. Moreover, the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and the motion must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. Therefore, a public body may not conduct an executive session to discuss the subject of its choice. In the context of your inquiry, there appears to have been no basis for entry into 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. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.
Relevant under the circumstances is §108(3), which exempts from the Open Meetings Law:
"...any matter made confidential by federal or state law." The provisions to which the attorney referred 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. Further, 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 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 deal with a matter made confidential by federal law that would be exempt from the Open Meetings Law. If my assumptions are accurate, I would agree with the position taken by the District's attorney.
I hope that the foregoing serves to enhance your understanding of the Open Meetings Law and that I have been of assistance.
Robert J. Freeman