November 20, 2018
FOIL AO 19694
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 relating to it. You referred to a notice of claim served upon the Northport-East Northport School District on behalf of your minor child. The notice of claim was disclosed to a local member of the news media who published an article naming your child that referred to the allegation regarding the “toxic effects of carbon monoxide poisoning altering [the] blood chemistry” of your daughter. The article also states that similar claims have been by other parents who claim that “their children have become sick from the air quality in the building.”
Even though the article includes “PII”, personally identifiable information concerning minors, you wrote that “parents were never contacted in writing, over the phone or through e-mail by anyone employed at our school district or the newspaper” and that you “never gave permission to the district to give [y]our child’s PII to the newspaper…”
You have sought my opinion concerning the propriety of the disclosure by the District.
From my perspective, the issue in terms of the District’s authority to disclose PII concerning your daughter is whether the notice of claim constitutes an “education record” as that term is defined in the federal Family Educational Rights and Privacy Act (FERPA, 20 USC §1232g).
The phrase “education records” is defined in the regulations promulgated pursuant to FERPA to mean those records are:
- Directly related to a student; and
- Maintained by an educational agency or institution or by a party acting for the agency or institution…” (34 CFR §99.3).
There are exclusions from the definition, but it is clear in my view that none would be pertinent.
While a parent of a student has the right to inspect and review education records pertaining to her/his child (regulations, §99.10), federal law prohibits the disclosure of PII without the consent of a parent (see §99.30), except in circumstances listed in §99.31, which clearly do not include disclosure to a member of the news media.
In short, based on the clear language of the federal provisions referenced above, I believe that a notice of claim identifying your daughter, a minor child, constitutes an “education record” that the District could not have disclosed absent your consent.
In good faith, in responding to a similar situation, a California court found that a notice of claim does not constitute an “education record”, stating that:
“It defies logic and common sense to suggest that a Claims Act claim, even if presented on behalf of a student, is an “educational record” or “pupil record” within the purview of these exemptions. Just because a litigant has chosen to sue a school does not transmogrify the Claims Act into such a record. We therefore conclude the release of such a claim implicates neither FERPA nor its California counterpart” Poway Unified School District v. The Superior Court of San Diego County, 62 Cal. App. 4th, 496 (1998).
In consideration of the breadth of the definition of “education records” in the federal regulations, it is difficult, in my view, to avoid considering the record at issue to be other than an education record. The California determination includes no analysis of FERPA; rather, it appears to be more of a reaction than a legal examination of federal law. Moreover, the decision was rendered by a state court, not a federal court having jurisdiction regarding the interpretation of FERPA. When a lawsuit is initiated in New York, records filed with a court are generally public (see Judiciary Law, §255). The submission of a notice of claim is not the equivalent of a lawsuit; rather, it is served before the initiation of a lawsuit, and there is no court record to be disclosed.
Aside from FERPA, the New York Freedom of Information Law (FOIL) authorizes an agency, such as a school district, to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy” [§§87(2)(b) and 89(2)(b)]. From my perspective, information identifiable to a minor student, especially as it relates to a student’s health, would be deniable under FOIL. I note, however, that FOIL is permissive. While the District clearly had the authority to withhold PII, it was not obliged to do so under FOIL. Even if FERPA does not apply, the wisdom or propriety of disclosing PII in this instance was, in my opinion, questionable.
I hope that I have been of assistance.
Robert J. Freeman
cc: Robert BanzerBeth Nystrom