July 5, 1994



Mr. Richard Freyman
Asst. Superintendent
Ossining Union Free School District
190 Croton Avenue
Ossining, NY 10562-4599

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.

Dear Mr. Freyman:

As you are aware, I have received your letter of June 21. You have sought my opinion concerning a request by the Unincorporated Ossining Association for "a copy of the most recent census listing the names and address of every child within the Ossining School District boundaries between the ages of 0 to 18 years of age". The request was made pursuant to the Freedom of Information Law and §§3241 and 2116 of the Education Law.

In this regard, I offer the following comments.

First, although §§3241 and 3242 of the Education Law refer to a school census, nothing in those statutes pertains to public disclosure of the records comprising or relating to the census. Further, the language of §2116 of the Education Law cannot in my opinion and in view a judicial determination by the State's highest court and the ensuing enactment of other statutes, be construed literally. Section 2116, which was enacted in 1947 states that:

"The records, books and papers belonging or appertaining to the office of any officer of a school district are hereby declared to be the property of such district and shall be open for inspection by any qualified voter of the district at all reasonable hour, and any such voter may makes copies thereof."

Based upon a decision rendered by the Court of Appeals, I do not believe that §2116 of the Education Law could be construed as broadly as its language indicates. In a case concerning the scope of §51 of the General Municipal Law, which states, in brief, that all records of a municipality are available, the contention was that rights granted by that statute exist notwithstanding the exceptions found in the Freedom of Information Law. The Court, however, found that:

"Such a result would nullify the FOIL exemptions, which the Legislature - presumably aware of General Municipal Law [section] 51 at the time it enacted FOIL - could not have intended. To give effect to both statutes, the FOIL exemptions must be read as having engrafted, as a matter of public policy, certain limitations on the disclosure of otherwise accessible records" [Xerox Corporation v. Town of Webster, 65 NY 131, 490 NYS 2d 488, 489 (1985)].

In my opinion, as in the case of §51 of the General Municipal Law, the exceptions appearing in the Freedom of Information Law should be considered as having been "engrafted" onto §2116 of the Education Law.

Second, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

Perhaps more important in this instance than the Freedom of Information Law are the provisions of a federal statute, the Family Educational Rights and Privacy Act (20 U.S.C. §1232g, also known as "FERPA").

In brief, FERPA applies to all educational agencies or institutions that participate in grant or loan programs administered by the United States Department of Education. As such, FERPA includes within its scope virtually all public educational institutions and many private educational institutions. The focal point of the Act is the protection of privacy of students. It provides, in general, that any "education record," a term that is broadly defined, that is personally identifiable to a particular student or students is confidential, unless the parents of students under the age of eighteen waive their right to confidentiality, or unless a student eighteen years or over similarly waives his or her right to confidentiality.

The regulations promulgated by the U.S. Department of Education pursuant to the FERPA define "personally identifiable information" to include "the name of the student's parent or other family member" or "the address of the student or student's family." [34 C.F.R. section 99.3] Therefore, records identifying students or parents of students and their addresses would, in my opinion, constitute "education records" that may be considered confidential.

An exception to the rule of confidentiality in the FERPA involves "directory information." Directory information is defined in the regulations of the Department of Education to include:

"....information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not limited to the student's name,address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended."

Prior to disclosing directory information, educational agencies must provide notice to parents of students in order that the parents may essentially prohibit any or all of the items from being disclosed. Therefore, if an educational agency or institution has adopted a policy on directory information, those items designated as directory information would be available to any person. If, however, an educational agency or institution has not adopted a policy on directory information, it would in my view be prohibited from disclosing records identifiable to students without the written consent of the parents of the student, or the students as the case may be.

Lastly, not all of the information included in census records would pertain to students attending public schools. Some would pertain to children too young to attend school or to those who do not attend the public schools. To that extent, the census would not be subject to the FERPA, but rather to the Freedom of Information Law. In my opinion, especially since a substantial portion of documentation that is not subject to FERPA relates to children of preschool age, disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information, §87(2)(b)] and may be withheld in that basis. In addition, while I am not suggesting that it would apply in this instance, §87(2)(f) of the Freedom of Information Law enables an agency to withhold records when disclosure would "endanger the life or safety of any person".

I hope that I have been of some assistance.



Robert J. Freeman Executive Director


OSSINING NY 10562-4599