March 17, 2008


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 the interaction between the New York State Freedom of Information Law (FOIL) and two federal acts, the Individuals with Disabilities Education Act (IDEA) and the Family Educational Rights and Privacy Act (FERPA).  Specifically, you are concerned that the New York State Department of Education’s representation to you that it will release student records to a parent upon receipt of a written request pursuant to FOIL, represents an effort to delay parental access to student records and would result in a violation of the law.  We agree with your opinion in part, and offer the following comments.

            First, the Committee on Open Government is empowered to issue legal advisory opinions concerning application of the Freedom of Information Law.  While only a court can make a judicial determination as to whether there has been a “violation” of the law, it is our hope that our written opinions are educational and persuasive and that they serve as helpful guidance.

            Second, based on our understanding of both the IDEA, FERPA and Mr. Waxman’s representations on behalf of the Department, while public access to student records is prohibited, parental access is permitted.  Accordingly, we agree with your assertion that upon request, parents have the right to inspect, review and obtain copies of their children’s educational records.

            Third, FOIL specifies that an agency such as the Department has the ability to deny access to records when there is a particular state or federal statute that prohibits disclosure (Public Officers Law §87[2][a]).  Here, where federal law grants parental access to student records, the FOIL preserves that right [see §89(6)].  Conversely, the opposite is generally true; the Department would be required to deny access to student records if the request were made by someone other than the student’s parent, based on §87(2)(a) and the prohibitions contained in IDEA and FERPA.

            Further, an agency may, pursuant to §89(3) of the Freedom of Information Law, require that a request be made in writing.  The same provision states that an applicant must “reasonably describe” the records sought.  Consequently, a request should include sufficient detail to enable agency staff to locate and identify the records.

            The Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests.  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, which shall be reasonable under the circumstances of the request, when such request will be granted or denied...”

            It is noted that new language was added to that provision in 2005 stating that:

“If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.” 

            Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request.  When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied.  However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access.  That date must be reasonable in consideration of the circumstances of the request.

            The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure.  They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon “the circumstances of the request.”  From our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."  Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure.  As the Court of Appeals, the state’s highest court, has asserted:

"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom.  By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception.  The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].

            In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:

“The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the  materials fall within one of the exceptions to disclosure.  Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL”(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).

            If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)].  In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which 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."

            Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal.  In that circumstance, 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.

            Based on the materials you submitted, it appears that a parent initially submitted a verbal request for records that was relayed to Mr. Waxman.  In his September 17, 2007 letter to the parent, Mr. Waxman informed the parent that the request should be made in writing to the records access officer at the Department of Education.  Then, on November 20, 2007, in response to correspondence from the parent to the Deputy Commissioner of VESID dated November 15, 2007, Mr. Waxman again wrote to inform the parent of the process for requesting records in writing.  Based on the November 20, 2007 correspondence, it is our opinion that VESID and the State Education Department received a written request for records from the parent, and that it should have dealt with the request directly or forwarded the request to the records access officer for handling in compliance with the time limits set forth above.

            As indicated previously §89(3) of the law, as well as the regulations promulgated by the Committee (21 NYCRR §1401.5), require that an agency respond to a request that reasonably describes the record sought within five business days of the receipt of a request.  Neither the law nor the regulations require that the request be received by the records access officer directly, only that the records access officer has the duty to coordinate an agency’s response to requests.  Based on the information provided, it is our opinion that the agency received a written request for records pursuant to the Freedom of Information Law by correspondence dated November 15, 2007.  Accordingly, if the parent has not already done so, and has not received a response, it is our opinion that s/he has the right to appeal a constructive denial of access to the requested records.

            We note that legislation enacted in 2006 broadened the authority of the courts to award attorney’s fees when government agencies fail to comply with the Freedom of Information Law.  Under the amendments, when a person initiates a judicial proceeding under the Freedom of Information Law and substantially prevails, a court has the discretionary authority to award costs and reasonable attorney’s fees when the agency had no reasonable basis for denying access to records, or when the agency failed to comply with the time limits for responding to a request.

            On behalf of the Committee on Open Government we hope that this is helpful to you.



                                                                                                Camille S. Jobin-Davis                                                                                                                                                Assistant Director


cc: Robert P. Waxman