January 12, 2016
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, except as otherwise indicated.
We are in receipt of your request for an advisory opinion regarding the manner in which the New York City Department of Education responded to your Freedom Information Law (FOIL) request.
In response to your request for records relating to your annual professional performance review from the New York City Department of Education, the agency denied access citing §87(2)(a), which permits an agency to deny access to records or portions thereof that are specifically exempted from disclosure by state or federal statute, the statute being Education Law §3012-c(10)(c). The agency was correct in stating that this provision of the Education Law provides that “[a]nnual professional performance reviews of individual teachers and principals shall not be subject to disclosure pursuant [FOIL].”
While records relating to your annual professional performance review may not be available to the general public pursuant to FOIL, §3012-C(2)(c)(2) states that “Subject to paragraph k of this subdivision the entire annual professional performance review shall be completed and provided to the teacher or principal as soon as practicable but in no case later than September first of the school year next following the school year for which the classroom teacher or building principal's performance is being measured.” In my opinion, your right to access records relating to your annual professional performance review is governed by the above referenced section of the Education Law.
I hope that I have been of assistance.
cc: Records Access Officer