June 19, 2019
FOIL AO 19741
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 am writing in response to your request for an advisory opinion regarding the manner in which the City University of New York (CUNY) responded to your Freedom of Information Law (FOIL) request.
You requested records pertaining to particular accusations made against you in 2018 and the resulting investigation. You also requested records relating to any other accusations that may have been made against you after 2010. CUNY denied the request in its entirety on the ground that the requested records, Title IX complaints, are “education records” made confidential pursuant to the Family Educational Rights and Privacy Act of 1974 (FERPA).
A significant part of your argument for disclosure relates to your role as the subject of the complaints and your right to due process. However, when records are accessible FOIL, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:
"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].
Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under FOIL. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using FOIL, irrespective of the intended use of the records. Similarly, unless there is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), in my opinion, the name of an applicant or his/her use of the records are, in most instances, irrelevant. As such, if you believe you are entitled to the records in question for the purpose of defending yourself against the allegations, mechanisms that are available through New York State Civil Practice Law and Rules, such as subpoenas or civil discovery, may be more appropriate.
The second question relates to whether CUNY is permitted to withhold the complaints and associated records in their entirety or whether the agency would be required to redact names and other personally identifying information and disclose the remainder.
In its appeal determination, CUNY’s argues that “if a request is exempted from disclosure by statute under Public Officers Law §87(2)(a), a responding agency may withhold the records in their entirety and is not required to disclose portions of the records with identifying details redacted.” However, FERPA and its corresponding regulations (34 CFR Part 99) require eligible student or parent consent prior to disclosure of “personally identifying information” contained in an education record. In our opinion, because the prohibition relates to the personally identifying information contained in the education record, and not the record in its entirety, the argument against having to redact is inapplicable to the situation at hand.
In support of your argument for redaction, you refer to two advisory opinions previously prepared by the Committee on Open Government. Both opinions, (FOIL AO 9762 and FOIL AO 10637) offer the opinion that records containing allegations of misconduct against an employee could be disclosed except to the extent that it includes personally identifiable information pertaining to students. The more recent of these two opinions was prepared in 1998. In 2008, the regulatory definition of “personally identifying information” was amended to include “Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.” (34 CFR 99.3(f)). It is my understanding that it is CUNY’s position that disclosure of any portion of the record would tend to identify the student who initiated the complaint. If this is accurate, in our opinion, CUNY’s decision to withhold the records in their entirety is consistent with law.
Finally, you assert that the complaining student’s have waived their right to confidentiality. In our opinion, this is not the case. CUNY is prohibited from disclosing personally identifying information contained in educational records absent eligible student or parental consent. There is no indication that the eligible student has consented to the disclosure of the requested records.
I hope this information proves useful.