February 26, 1998

Mr. Mark C. Smith
104 Fairway Lane
Sherrill, NY 13461

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, unless otherwise indicated.

Dear Mr. Smith:

I have received your letter of February 3 concerning your request for
records of the Canastota Central School District.

According to your letter and related materials, you submitted a request
under the Freedom of Information Law "for copies of letters or
communications the District has received concerning you at the Board of
Education meeting of October 14, 1997 or at anytime." In his response to
your appeal following an initial denial of access, the Superintendent of
Schools expressed the "understanding the records you seek are written
complaints of certain parents and /or students concerning your performance
as an athletic coach with the District." On that basis, he denied your request,
contending that the records are exempted from disclosure under the federal
Family Educational Rights and Privacy Act (FERPA), that disclosure would
constitute an unwarranted invasion of personal privacy, and "because the
records can be fairly characterized as inter-agency or intra-agency

While I disagree with one of the grounds for denial offered by the
Superintendent, I believe that the two others were validly asserted. In this
regard, I offer the following comments.

First, as a general matter, the Freedom of Information Law 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.

The ground for denial referenced by the Superintendent with which I
disagree is §87(2)(g) of the Freedom of Information Law, which authorizes
agencies to withhold some aspects of "inter-agency or intra-agency materials."
I do not believe that the cited provision would be applicable. Section 86(3)
of the Freedom of Information Law defines the term "agency" to mean:

"any state or municipal department, board,
bureau, division, commission, committee,
public authority, public corporation, council,
office or other governmental entity performing
a governmental or proprietary function for the
state or any one or more municipalities
thereof, except the judiciary or the state

Based on the foregoing, an "agency" is an entity of state or local government,
and the materials falling within the exception involve communications among
or between government officers or employees. As stated recently by the
state's highest court, the intent of that exception involves the "limited aim to
safeguard internal government consultations and deliberations" [Gould v. New
York City Police Department, 89 NY2d 267, 276 (1996)]. Parents and
students are not agency officers and employees; consequently, their
communications with the District would not be "inter-agency or intra-agency
materials" and §87(2)(g) would not serve as a basis for a denial of access.

Nevertheless, perhaps of greatest significance under the circumstances
is the initial ground for denial, §87(2)(a), which pertains to records that are
"specifically exempted from disclosure by state or federal statute." In this
instance, insofar as disclosure of the records in question would or could
identify a student or students, I believe that they must be withheld. A statute
that exempts records from disclosure is the FERPA (20 U.S.C. §1232g). In
brief, FERPA applies to all educational agencies or institutions that participate
in grant programs administered by the United States Department of
Education. As such, FERPA 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. Further, the federal
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
(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, references to students' names, parents' 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.

Aside from FERPA, it has generally been advised that those portions
of a complaint which identify complainants may be withheld on the ground
that disclosure would result in an unwarranted invasion of personal privacy
pursuant to §87(2)(b) of the Freedom of Information Law. Further, §89(2)(b)
contains examples of unwarranted invasions of personal privacy, the last two
of which include:

"iv. disclosure of information of a personal
nature when disclosure would result in
economic or personal hardship to the subject
party and such information is not relevant to
the work of the agency requesting or
maintaining it; or

v. disclosure of information of a personal
nature reported in confidence to an agency and
not relevant to the ordinary work of such

In my view, what is relevant to the work of the agency is the substance of the
complaint, i.e., whether or not the complaint has merit. The identity of the
person who made the complaint is often irrelevant to the work of the agency,
and in such circumstances, I believe that identifying details may be withheld.

I note that the Superintendent wrote that "it does not appear that the
mere deletion of identifying details would safeguard against the unwarranted
invasion of personal privacy of such individuals." In my opinion, if the
deletion of names or other identifying would clearly preclude the recipient of
a record from ascertaining the identity of the writer or, for example, his or her
child, the remainder of the record should be disclosed. If, however, as
suggested by the Superintendent, those deletions would not clearly preclude
ascertaining the identities of those persons, it would appear that other aspects
of the records, or even the records in their entirety, may be withheld.

I hope that the foregoing serves to clarify your understanding of
applicable law and that I have been of assistance.


Robert J. Freeman
Executive Director

cc: Harry T. Kilfoile, Jr.
Mary Fresina