December 30, 2014
FROM: Camille S. Jobin-Davis, Assistant Director
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.
This is in response to your request for an advisory opinion regarding application of the
Freedom of Information Law to records requested from the SUNY Research Foundation.
First, this will confirm that the Research Foundation is an “agency” subject to the Freedom of Information Law, as per the judicial determination in Siani v. Research Foundation of the State University of New York, Supreme Court, Albany County, March 26, 2007 (Research Foundation is subject to FOIL) and then later in Hearst Corporation v. Research Foundation of the State of New York, Supreme Court, Albany County, September 17, 2010 (Research Foundation prohibited from relitigating issue of whether it is an “agency” subject to FOIL; attorney’s fees awarded). Accordingly, it has been judicial determined that the Research Foundation is required to make records available in whole or in part pursuant to the Freedom of Information Law.
Second, the Research Foundation is, like all other agencies, required by law to maintain “a record setting forth the name, public office address, title and salary of every officer or employee of the agency.” (§86[b].) Pursuant to the statutory authority granted this office, this will confirm our opinion that disclosure of this record in its entirety would not constitute an unwarranted invasion of personal privacy.
The Research Foundation relies on the judicial determination in New York State United Teachers Assoc. v Brighter Choice Charter Schools (15 NY3d 560, 915 NYS2d 194 ) to deny access to the names, business addresses, and salaries of Research Foundation employees to a union. The Court determined that disclosure of the names of employees of a charter school to a union would constitute an unwarranted invasion of personal privacy, as the union, by inference, would use the information for solicitation or fund-raising purposes. In light of the Court’s determination, we recognize that it would now require legislative action for a court to require the release of names of agency employees to a union, unless it is clear that the names and addresses would not be used for solicitation or fund raising.
The decision in United Teachers is limited, however, and only protects the names of agency employees; employee titles and business office addresses were made public in that case.
We believe that the Research Foundation’s reliance on Federation of NYS Rifle & Pistol Clubs v New York City Police Department (73 NY2d 92, 538 NYS2d 226 ) is misplaced, for it does not pertain to names of employees of agencies.
Third, the Freedom of Information Law does not distinguish between agency employees who are paid with “tax-payer” money and those that receive “third-party” money. There is no basis in law to distinguish between employees paid through various funding streams. Other agencies that receive federal money are under the very same legal requirements to disclose.
Fourth, as a general matter, the Freedom of Information Law is permissive. Stated differently, even though an agency, such as the Research Foundation, may withhold records in accordance with the grounds for denial listed in §87(2), it is not required to do so. See, Capital Newspapers v. Burns, 67 NY2d 562, 505 NYS2d 576 (1986). Stated differently, until or unless a state or federal law prohibits disclosure of certain information, it is within the agency’s discretion to deny access to records.
The one law that the Research Foundation relies on to deny access to a portion of the records is the Family Educational Rights and Privacy Act (FERPA), which protects student “education records”. Included in the definition of “education records” are those 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 protections afforded “education records” are not extended to the following:
“(3)(i) Records relating to an individual who is employed by an educational agency or institution, that:
(A) Are made and maintained in the normal course of business;
(B) Relate exclusively to the individual in that individual’s capacity as an employee; and
(C) Are not available for use for any other purposes.
(ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.”
Accordingly, the statutory definition of “education record,” includes those related to individuals “in attendance at the agency or institution who is employed as a result of his or her status as a student”. As far as we are able to determine, there are no students “in attendance” at the Research Foundation. Based on this logic, without more, it is our opinion that FERPA does not limit disclosure of records related to salaries and addresses of employees of the Research Foundation, even if they attend a SUNY educational institution.
Finally, we note that the response to your appeal includes reference to portions of records that will be redacted in the future, and notification that you will be contacted “with responsive documents or a date when the responsive documents will be available.” FOIL requires that an agency “shall within ten business days of the receipt 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.” The statute does not allow the agency additional time to redact records; rather, it must deny or provide access within ten business days. If our assumption is correct and the Research Foundation failed to provide those portions of the records that it is required to release within ten business days of receipt of the appeal, in our opinion, it acted in contravention of law.
We hope this is helpful.