October 20, 1994



Mr. Gary Hayes
Box 45
Middleburgh, NY 12122

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.

Dear Mr. Hayes:

I have received your letter of September 23 in which you sought an advisory opinion.

According to the materials attached to your letter, you requested from the Middleburgh Central School District "agendas for executive session that mention...or relate to" you covering the period of 1991 to the present. The request was denied by the District Clerk "based on a ruling from the State Education Department."

I am familiar with neither the ruling to which the Clerk referred nor the nature or content of the agendas that you requested. Nevertheless, I offer the following comments.

First, the Freedom of Information Law pertains to all records of an agency, such as a school district, and §86(4) of the Law defines the term "record" to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

As such, insofar as agendas pertaining to executive sessions exist, I believe that they constitute records subject to rights of conferred to the Freedom of Information 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. From my perspective, several of the grounds for denial may be relevant to the matter.

The initial basis for denial, §87(2)(a), pertains to records that are "specifically exempted from disclosure by state or federal statute." One such statute, the federal Family Educational Rights and Privacy Act (20 U.S.C. §1232g) generally precludes an educational agency from disclosing information personally identifiable to a student, unless a parent of the student consents to disclosure. While an agenda item might relate to you, insofar as disclosure could identify a student, I believe that it could be withheld.

Section 87(2)(b) enables an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." If, for example, a complaint was made concerning you, portions of the complaint which if disclosed would identify the complainant could in my view be withheld. I point out that, unless portions of records may otherwise be withheld (i.e., those identifiable to students or complainants or perhaps expressions of opinion) §89(2)(c) of the Freedom of Information Law states in essence that you cannot invade your own privacy and that you may obtain records pertaining to yourself.

Lastly, §87(2)(g) permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld. I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Marie Campbell, District Clerk