August 18, 1999



TO: Linda Towler

FROM: Robert J. Freeman, Executive 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 information presented in your

Dear Ms. Towler:

As you are aware, I have received your letter of July 21. In your capacity as a
member of a board of education, you asked whether you may "issue a copy of a letter the
acting superintendent wrote to the special education director in response to an original letter
written by an ex-board member." You added that "[t]he ex-board member wrote the letter
to the state and copied the current board members", and that the acting superintendent, in
response, "raise[d] five allegations against the ex-board member to the state." Since the
acting superintendent did not transmit a copy to the ex-board member, you asked whether
you may "give the ex-board member a copy of this correspondence in order for him to answer
the charges."

In this regard, while I believe that the letter could be withheld under the Freedom of
Information Law, I know of no law that would preclude you from disclosing the document
in question to the former board member.

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. From my perspective, it is likely that two of the grounds for denial
would authorize the school district to withhold the letter.

First, in situations in which a person is the subject of allegations or questions involving
impropriety or misconduct that have not yet been determined or did not result in disciplinary
action, it has been held that records relating to those allegations or questions may be withheld
on the ground that disclosure would constitute an unwarranted invasion of personal privacy
pursuant to §87(2)(b) of the Freedom of Information Law.

Second, a letter sent by the district to a state agency would constitute "inter-agency
material" that falls within the scope of §87(2)(g). Insofar as its contents include
unsubstantiated allegations, it could, in my view, be withheld under that exception as well.

Notwithstanding the foregoing, it is emphasized that the Freedom of Information Law
is permissive. In other words, while that statute authorizes an agency to withhold records in
accordance with the grounds for denial, it has been held by the Court of Appeals that the
exceptions are not mandatory, and that an agency may choose to disclose records even
though the authority to withhold exists [Capital Newspapers v. Burns], 67 NY 2d 562, 567

Again, I am unaware of any statute that would prohibit a board member from
disclosing the kind of record that you described. Further, even when information might have
been obtained during an executive session properly held or from records marked
"confidential", I note that the term "confidential" in my view has a narrow and precise
technical meaning. For records or information to be validly characterized as confidential, I
believe that such a claim must be based upon a statute that specifically confers or requires

For instance, if a discussion by a board of education concerns a record pertaining to
a particular student (i.e., in the case of consideration of disciplinary action, an educational
program, an award, etc.), the discussion would have to occur in private and the record would
have to be withheld insofar as public discussion or disclosure would identify the student. As
you may be aware, the Family Educational Rights and Privacy Act (20 USC §1232g)
generally prohibits an educational agency from disclosing education records or information
derived from those records that are identifiable to a student, unless the parents of the student
consent to disclosure. In the context of the Open Meetings Law, a discussion concerning a
student would constitute a matter made confidential by federal law and would be exempted
from the coverage of that statute [see Open Meetings Law, §108(3)]. In the context of the
Freedom of Information Law, an education record would be specifically exempted from
disclosure by statute in accordance with §87(2)(a). In both contexts, I believe that a board
of education, its members and school district employees would be prohibited from disclosing,
because a statute requires confidentiality. Again, however, no statute of which I am aware
would confer or require confidentiality with respect to the matter described in your

I hope that I have been of assistance.