August 2, 1996
Ms. Kathleen Flamio
11 Winoka Drive
Huntington Station, NY 11746
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. Flamio:
I have received your recent letter, which reached this office on July 28. You wrote that your request to look at Glen Cove High School yearbooks was denied by the principal. You have questioned the propriety of his response.
From my perspective, there is no basis for prohibiting you from looking at the yearbooks. In this regard, I offer the following comments.
First, the Freedom of Information Law pertains to agency records. A school district clearly is an "agency" [see Freedom of Information Law, §86(3)], and §86(4) of that statute defines the term "record" to mean:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
Based on the foregoing, assuming that the District or the High School maintains a copy of the yearbook, I believe that the yearbook would constitute a "record" that falls within the scope of rights conferred by the Freedom of Information Law.
Second, that statute 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. In my view, none of the grounds for denial could justifiably be asserted to withhold a yearbook.
While records identifiable to students ordinarily may be withheld pursuant to the federal Family Educational Rights and Privacy Act (20 USC §1232g), in the case of a yearbook, by its nature, those identified have consented to disclosure. Moreover, any purchaser of a yearbook has acquired personally identifying details concerning students that appear throughout the yearbook, i.e., through photographs of individuals, classes, teams, clubs, etc. Because those details have been and could be made known to any purchaser of a yearbook and any others with whom the contents of the yearbook have been shared, I do not believe that the district would have any basis for denying access to a yearbook. Moreover, frequently yearbooks are kept and made available to the public at public libraries. If you cannot view the yearbooks at a public library, again, it is my view that the District must make them available for inspection.
I hope that I have been of assistance.
Robert J. Freeman
cc: Lane Schwartz, Principal