March 12, 2018
SENT VIA EMAIL
FROM: Robert Freeman, Executive Director
CC: Mary Beth Denny, Superintendent (email@example.com)
Karen Denny, Principal (firstname.lastname@example.org)
Lisa Parsons, Assistant Principal (email@example.com)
Jay Wiley, Athletic Coordinator (firstname.lastname@example.org)
Kyle Baker, Basketball Coach (email@example.com)
RE: FOIL Advisory Opinion
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, except as otherwise indicated.
I have received your letter and the materials attached to it. You have sought guidance concerning your efforts in obtaining information relating to your minor son from the South Jefferson School District.
In brief, your son was involved in issues relating to his participation on the high school’s basketball team and discussed them with the coach, who terminated him from the team. The Coach stated that there were numerous examples that led to his determination, and you requested a list of those examples. He indicated that a list would be provided later that day during your meeting with the Superintendent. You did in fact meet with the Superintendent and other District staff, and she said that she would support the coach and that the Board of Education would likely agree with her recommendation. When you inquired regarding the list that the coach promised to share, the Superintendent said that she “received something in a google doc” but could not open it. However, the Assistant Principal said that she could do so, and that she opened it and read it. When you contacted her, she said that the matter had been referred to the Superintendent. You later received a letter from her in which she wrote that: “Records in that format are not kept by coaches nor are they obligated to create such records or reports upon parent request.”
In your letter to me, you wrote that you would like to obtain “all written documents and emails” concerning your son and basketball prepared or received by the Superintendent, the Assistant Superintendent, the coach and other District staff that you identified by name. In this regard, I offer the following comments.
First, the Freedom of Information Law (FOIL) pertains to all government agency records, including those of a school district, and significantly, §86(4) of that statute defines the term “record” expansively to mean “any information kept, held, filed, produced or reproduced by, with or for an agency…in any physical form whatsoever…” Based on that provision, if information is maintained by or for an agency in some physical form, whether on paper or electronically, as in the case of email, it constitutes an agency record that falls within the framework of FOIL. Even if email is sent or received by a public employee from his/her home or private office and that communication relates to his/her agency function, it is a “record” subject to rights of access.
Second, government agencies cannot merely destroy or dispose of records at will. Rather, records retention schedules developed by the State Archives pursuant to Article 57-a of the Arts and Cultural Affairs Law specify the length of time that records must be retained. The schedule applicable to school districts can be found by googling “ED-1”. I note, too, that if an agency indicates that it does not possess or cannot locate a requested record, the person seeking the record may request and an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” [see FOIL, §89(3)(a)].
Third and perhaps most significantly, in addition to the right to inspect and copy records conferred by FOIL, which is a New York statute, the federal Family Educational Rights and Privacy Act (“FERPA”, 20 USC §1232g), offers parents of students rights of access to records pertaining or identifiable to their minor children. Concurrently, FERPA prohibits disclosure to others, unless a parent consents to disclosure. Insofar as the information sought exists in the form of a record or records and is identifiable to your son, it is clear in my opinion that the District is required to disclose the record or records to you. I point out, too, that FOIL provides a right to copy records or, upon payment of the requisite fee, that an agency is required to make copies.
Finally, if the recipient of a record made available pursuant to FERPA is a parent who believes that the record is in some way “inaccurate, misleading or in violation of the student’s rights of privacy”, the regulations promulgated to implement FERPA (34 CFR §99.20 -21) permit the parent to ask that the record be amended. A school district may correct the record, or if it determines that the record is not inaccurate, provide the right to a hearing. Following the hearing, the record may be amended accordingly, or the parent must be informed of the “right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision of the agency or institution or both.” Further, whenever the record is later disclosed, the statement of the parent must be included.
In an effort to enhance their understanding of and compliance with applicable law, copies of this opinion will be forwarded to District officials.
I hope that I have been of assistance.