December 27, 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 facts presented in your correspondence.
As you are aware, I have received your letter in which you raised a series of questions relating to the Moriah Central School District, and particularly in relation to your son’s educational program.
It is noted at the outset that the advisory authority of the Committee on Open Government pertains to the disclosure of information by government agencies, such as school districts. This office has neither the jurisdiction nor the expertise to address the issues that you raised concerning family relationships among members of the Board of Education and District employees or other matters involving ethics.
As I understand the situation, you are involved in a proceeding concerning your son’s education, and you have raised issues questions and issues with the members of the Board and the Committee on Special Education (CSE). You were informed, however, that those persons were directed not to share information or communicate with you concerning matters discussed during an executive session pertaining to your child. The issue was apparently raised with the District’s attorney who prepared a letter addressed to the Superintendent on the subject of "Executive Session Discussions – Confidentiality." The attorney focused on information identifiable to students and advised, in brief, that such is information is confidential and cannot be disclosed. I am in general agreement with the attorney. However, I do not believe that the prohibition concerning disclosure would apply to disclosure to the parent of a child who is the subject of the information.
In this regard, by way of background, the Freedom of Information Law pertains to government agency records and generally requires that agency records be disclosed, unless there is a basis for denial appearing in the Law that can be properly asserted. Similarly, the Open Meetings Law generally requires that meetings of public bodies, such as boards of education or committees on special education, 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. 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. 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."
Relevant with respect to both records and meetings 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 (34 CFR Part 99). In brief, FERPA applies to all educational agencies or institutions that participate in grant or loan 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. Concurrently, FERPA provides rights of access to education records to a parent of a student under the age of eighteen.
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 or the CSE 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. Nevertheless, when the information discussed by a board of education or CSE relates to a particular student, I do not believe that the prohibition against disclosure would apply to disclosures made to the parent of that student. If that kind of prohibition were to apply, parent-teacher conferences could not occur, and parents would be unable to discuss their children’s educational programs with teachers or others involved with the education of their children.
In short, I agree that information identifiable to a student ordinarily cannot be disclosed to a member of the public, unless a parent of the student consents to disclosure. That prohibition, however, cannot sensibly apply in my opinion in a situation in which a parent of a student discusses matters involving his or her child with a member of a board of education or CSE.
It is suggested that you consider clarification of your rights under FERPA as well as the ability of Board members and others to discuss matters involving your child with you by contacting the federal agency that oversees FERPA, which is the Family Policy Compliance Office, Department of Education, 400 Maryland Avenue, S.E., Washington, DC 20202-5901.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education
Edward J. Sarzynski