October 27, 1998



Mr. and Mrs. Robert W. Broderick
2751 St. Rt. 26
Vestal, NY 13850

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

Dear Mr. and Mrs. Broderick:

As you are aware, your letter of October 16 addressed to Attorney General Vacco has
been forwarded to the Committee on Open Government. The Committee, a unit of the
Department of State, is authorized to provide advice concerning the Freedom of Information

As I understand the matter, it is your view that the Southern Cayuga Central School
District denied your son access to an important aspect of his education without due process,
and you requested records in order to ascertain the reason for the District's actions.
Nevertheless, according to your letter, the District has failed to respond in a manner
consistent with law. In this regard, I offer the following comments.

First, the Freedom of Information Law provides direction concerning the time and
manner in which agencies, such as school districts, must respond to requests for records.
Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within
five business days of the receipt of a written request for a
record reasonably described, shall make such record available
to the person requesting it, deny such request in writing or
furnish a written acknowledgement of the receipt of such
request and a statement of the approximate date when such
request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given
within five business days, or if an agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my opinion, be considered
to have been constructively denied. In such a circumstance, I believe that the denial may be
appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision
states in relevant part that:

"...any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive, or
governing body, who 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."

In addition, it has been held that when an appeal is made but a determination is not
rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of
the Freedom of Information Law, the appellant has exhausted his or her administrative
remedies and may initiate a challenge to a constructive denial of access under Article 78 of
the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774

Second, while your letter does not describe the nature of the records sought, I point
out as a general matter that 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. Enclosed are copies of that statute and an explanatory brochure that
may be useful to you.

Assuming that some of the records sought consist of communications between or
among District officials, it is likely that §87(2)(g) would be pertinent. While that provision
serves as a potential basis for denial of access to records, due to its structure, it frequently
requires substantial disclosure. Section 87(2)(g) permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits
performed by the comptroller and the federal government..."

It is emphasized that the language quoted above contains what in effect is a double negative.
While inter-agency or intra-agency materials may be withheld, portions of such materials
consisting of statistical or factual information, instructions to staff that affect the public, final
agency policy or determinations or external audits must be made available, unless a different
ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and
the like could in my view be withheld. If the report is indeed the work of a consultant, it
would be available or deniable, in whole or in part, based on its specific contents.

I point out that one of the contentions offered by the New York City Police
Department in a recent decision rendered by the Court of Appeals, the State's highest court,
was that certain reports could be withheld because they were not final and because they relate
to incidents for which no final determination had been made. The Court rejected that finding
and stated that:

"...we note that one court has suggested that complaint
follow-up reports are exempt from disclosure because they
constitute nonfinal intra-agency material, irrespective of
whether the information contained in the reports is 'factual
data' (see, Matter of Scott v. Chief Medical Examiner, 179
AD2d 443, 444, supra [citing Public Officers Law
§87[2][g][iii)]. However, under a plain reading of §87(2)(g),
the exemption for intra-agency material does not apply as long
as the material falls within any one of the provision's four
enumerated exceptions. Thus, intra-agency documents that
contain 'statistical or factual tabulations or data' are subject to
FOIL disclosure, whether or not embodied in a final agency
policy or determination (see, Matter of Farbman & Sons v.
New York City Health & Hosp. Corp., 62 NY2d 75, 83,
supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [Gould
et al. v. New York City Police Department, 87 NY2d 267,
276 (1996)].

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).

Perhaps most relevant under the circumstances would be the Family Education Rights
and Privacy Act (20 U.S.C. §1232g), which is commonly known as "FERPA". In brief,
FERPA applies to all educational agencies or institutions that participate in funding, loan or
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 points of the Act are rights of access by certain persons
and 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. 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 member;
(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 or other aspects of records that
would make a student's identity easily traceable must in my view be withheld from the public
in order to comply with federal law. Concurrently, if a parent of a student requests records
pertaining to his or her child, the parent ordinarily will have rights of access to those portions
of records that are personally identifiable to their children.

I hope that I have been of assistance. Should any questions arise concerning the
Freedom of Information Law, please feel free to contact me.



Robert J. Freeman
Executive Director



cc: Board of Education