September 3, 2004
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.
As you are aware, I have received your letter and the materials relating to it.
In a letter addressed to members of the Board of Education of the Spencerport School District, it was stated that you were designated by a group of parents of "Special Education students" to ask to arrange a private meeting with the Board. It was indicated in the letter that in discussing a variety of issues with the Board, "private student records will need to be presented." It was noted that each of the parents represented "has experienced difficulties to the degree [that they] feel anonymity is a necessary safeguard prior to presenting [their] concerns." In response to the letter, an attorney representing the District wrote that "pursuant to the New York Open Meetings Law (Public Officers Law) it would be improper for the Board to convene an executive session of the purpose set forth in your letter. Under that law, except for specified exceptional circumstances, the Board is required to conduct its meetings in public."
While I agree that there may be no basis upon which the Board could conduct an executive session to consider the issues raised with you or other parents and that the attorney’s response may be technically correct, I believe that there is a legal means of enabling you or other parents to meet with the Board in private to discuss concerns that identify students.
In this regard, I point out that there are two vehicles that may authorize a public body, such as a board of education, 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 the matter that you presented, 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. In short, when a matter is exempt from the Open Meetings Law, that law simply does not apply.
Relevant under the circumstances is §108(3), which exempts from the Open Meetings Law:
"...any matter made confidential by federal or state law."
One such law is the federal Family Educational Rights and Privacy Act ("FERPA", 20 USC §1232g . 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 by the U.S. Department of Education 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. That being so, I believe that the Board could legally meet with a parent or parents in private, outside the coverage of the Open Meetings Law, to discuss special education students, individual educational programs or other matters identifiable to students, so long as parents of students consent to disclosure.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education
Jay C. Pletcher