September 27, 2012

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 a variety of materials from you concerning your efforts in gaining an appropriate education for your son.  The materials relate to requests directed to the State Education Department (“SED”) concerning the dismissal of your “state complaint” against the Department.

Based on a review of the materials, I offer the following comments.

The underlying issue involves the education of your son, and yet the responses to your requests make little or no reference to the federal Family Educational Rights and Privacy Act (“FERPA”; 20 U.S.C. §1232g).  The regulations promulgated by the U.S. Department of Education, 34 CFR Part 99, provide guidance concerning the scope of FERPA.  I note that FERPA refers to the parents’ right to “inspect and review” education records pertaining to their minor children.  The New York Freedom of Information Law (“FOIL”), which pertains to all records maintained by or for an agency, such as a school district or SED, also includes reference to the right to inspect records accessible under that statute, but it clearly requires agencies to prepare copies of those records upon payment of the proper fees [§§87(2), 89(3)(a)].

Section 99.10 of the federal regulations states in part that:
“a parent…must be given the opportunity to inspect and review the student’s education records.  This provision applies to—

  1. Any educational agency or institution; and
  2. Any State educational agency (SEA) and its components.”

Section 99.3 defines “education records” to mean those records that are:

  1. Directly related to a student; and
  2. Maintained by an educational agency or institution or by a party acting for the agency or institution.”

The same section states that the term “education records” does not include:
“(3)(i) Records relating to an individual who is employed by an educational agency or institution that:

  1. Are made and maintained in the ordinary course of business;
  2. Relate exclusively to the individual in that individual’s capacity as an employee; and
  3. Are not available for use for any other purpose.”

Insofar as the records sought are directly related to your son and are maintained by SED, it appears that they constitute “education records” that should be made available to the parent of the student to comply with FERPA.  Although the records identify and deal with the actions or absence thereof of one or more employees of SED, it does not appear that the records were made and maintained in the ordinary course of business; rather, their creation was precipitated by your complaint.  Further, it does not appear that records relate “exclusively” to employees.  Again, they deal in great measure with the treatment and education of your son.

To the extent that FERPA applies, it provides rights of access to a parent in excess of those conferred by FOIL.  I point out, too, that FOIL preserves those rights, stating in §89(6) that:  “Nothing in this article [FOIL] shall be construed to limit or abridge any otherwise available right of access at law or in equity of any party to records.”  Stated differently, if FERPA or another provision of law grants rights access, the exceptions to rights of access appearing in §87(2) of FOIL cannot be asserted to withhold records.

That point may be particularly significant in consideration of the exception cited by the Department in its partial denial of your request.  By way of background, as a general matter, FOIL is based on a presumption of access.  Section 87(2) states that all agency records are available for inspection and copying, except those records or portions of records that fall within one or more of the grounds for denial of access that follow.

Assuming that FERPA does not apply to some of the records at issue, FOIL would be applicable, and the responses to your requests indicate that elements of the records sought were withheld pursuant to §87(2)(g).
Although that provision potentially authorizes an agency to deny access, due to its structure, it often requires substantial disclosure.

Perhaps the leading decision concerning the scope and intent of §87(2)(g) is Gould v. New York City Police Department [89 NY2d 267 (1996)], in which the Court of Appeals, the state’s highest court, held that:

“To ensure maximum access to government records, the ‘exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption’ (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]).

As this Court has stated, ‘[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld’ (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)” (id., 275).

The Court offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

“ invoke one of the exemptions of section 87(2), the agency must articulate ‘particularized and specific justification’ for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)” (id.).

The Court also dealt with the issue of what constitutes “factual data” that must be disclosed under §87(2)(g)(i). In its consideration of the matter, the Court found that:

“...Although the term ‘factual data’ is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is ‘to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers’ (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of ‘statistical or factual tabulations or data’ (Public Officers Law 87[2][g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182)” (id., 276-277).

You provided a copy of the New York State Complaint Investigator’s Manual that was used by SED staff to investigate your complaint.  Some of the redactions from the records requested appear to be inconsistent with the direction provided in the manual.

“Supporting Facts: are described on page 2 of the Manual to mean “information provided by the complainant to support her belief that there has been a violation.”  Although that information may reflect the complainant’s opinion or point of view, if that information was withheld, such a denial would be inconsistent with the holding in Gould.  As indicated above, the ability to deny access under §87(2)(g) involves communications between and among agency officials in which those officials offer opinions, advice, recommendations and the like.  That being so, comments, including expressions of opinion, provided by persons who are not government officers or employees would not constitute inter-agency or intra-agency materials (Gould, id., 277).

Substantial portions of the Preliminary Survey and the Review of the State Complaint were redacted.  While I cannot know the nature of the material that was withheld, to comply with the direction provided in the Manual, it would appear that some of the material would, of necessity consist of factual information or reflect the essence of a determination.  Page 20 of the Manual describes “Conclusions and Reasons”, stating that conclusions are “the result of the application of law and regulation to the allegation; supported by the evidence as identified in the statements of fact; and the basis for the investigator to determine if the allegation is sustained.”  Based on that language, the investigator “determines.”  In my view, any such determination would be accessible under subparagraph (iv) of §87(2)(g), which grants access to final agency policies or determinations.

The foregoing consideration of §87(2)(g) is not intended to supplant consideration of FERPA.  Again, insofar as the materials constitute education records that fall within the coverage of FERPA, I believe that they would be available to you, notwithstanding FOIL.

Lastly, despite SED’s statement that it is its “intention to fully comply with FOIL’ obligations”, I believe that the Commissioner’s determination of your FOIL appeal was rendered far beyond the statutory time for so doing.  As you are likely aware, §89(4)(a) directs that the person or body that determines appeals “shall within ten business days of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.”  Although you appealed on May 8, no determination was rendered until July 27.  A delay of that nature clearly indicates a failure to fully comply with FOIL.

In an effort to encourage SED to reconsider the matter, copies of this opinion will be sent to Commissioner King.
I hope that I have been of assistance.


Robert J. Freeman
Executive Director
cc:  John B. King, Jr., Commissioner