From: Jobin-Davis, Camille (DOS)
Sent: Thursday, May 29, 2014 3:31 PM
Subject: FOIL Question
This will confirm my opinion that letters of reference would be “education records”, confidential under
FERPA except to the parents of the student about whom the reference was written. If comments from
teachers are “education records” (see opinions linked below), I would apply the same analysis, and
indicate that they would be confidential except to the parents of the student about whom the
comments were written.
If, on the other hand, the comments are not “education records”, this will confirm my opinion that
under FOIL they would be considered intra-agency, and they would not be required to be released to
anyone, parents and public alike, because by nature, they are subjective opinions and perhaps
recommendations – see section 87(2)(g). Please note that the District could choose to release them
under FOIL, if FERPA did not apply; however, FOIL is discretionary, and permits the agency the authority
to withhold intra agency communications that consist of opinions or recommendations.
There are two advisory opinions available through our FOIL Advisory Opinion Index, under “F” for
“FERPA – National Honor Society” – apparently, you weren’t the first to raise these questions! I’ve
copied the links to these opinions below:
I hope you find them helpful. Should you have further questions, please let me know.
Camille S. Jobin-Davis, Esq.
NYS Committee on Open Government
Department of State
99 Washington Avenue, Suite 650
Albany, NY 12231