July 27, 1995
Mr. Jeff P. Janiszewski
1082 Maryland Avenue
Schenectady, NY 12308
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. Janiszewski:
I have received your letter of July 17 in which you raised a series of issues concerning the obligation, if any, of the Schenectady School District and its Board of Education to disclose information, respond to questions or publicly discuss a matter involving a stabbing that occurred at the High School in May. You indicated that both the victim and the alleged assailant have been identified by the police and that the District's investigation has ended. Nevertheless, District officials contend that "there are legal obstacles to full disclosure."
In conjunction with the questions that you raised, I offer the following comments.
First, as you are aware, in general, the Freedom of Information Law requires that agency records be disclosed, unless there is a basis for denial appearing in the Law that can be properly asserted. Similarly, the Open Meetings Law generally requires that meetings of public bodies be conducted in public, unless there is a basis for closing the meeting. I point out that there are two vehicles that may authorize a public body to discuss public business in private. One involves entry into an executive session. Section 102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. The other vehicle for excluding the public from a meeting involves "exemptions." Section 108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not applicable. Pertinent to the issues you raised is §108(3), which exempts from the Open Meetings Law:
"...any matter made confidential by federal or state law." Second, the title of the Freedom of Information Law may be somewhat misleading, for it is not a vehicle that requires agencies to provide information per se; rather, it requires agencies to disclose records to the extent provided by law. As such, while an agency official may choose to answer questions or to provide information by responding to questions, those steps would represent actions beyond the scope of the requirements of the Freedom of Information Law. Moreover, the Freedom of Information pertains to existing records. Section 89(3) of that statute states in part that an agency need not create a record in response to a request.
In like manner, although the Open Meetings Law provides the public with the right to attend meetings of public bodies, the Law is silent with respect to public participation at meetings. In short, while members of a public body may choose to answer questions, there is no obligation to do so under the Open Meetings Law or any other law of which I am aware.
Third, relevant with respect to both records and meetings concerning the incident that you described and similar or related matters are the federal Family Educational Rights and Privacy Act ("FERPA", 20 USC §1232g) and the regulations promulgated pursuant to FERPA by the U.S. Department of Education. In brief, FERPA applies to all educational agencies or institutions that participate in grant programs administered by the United States Department of Education. As such, it 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 under FERPA define the phrase "personally identifiable information" to include:
"(a) The student's name; (b) The name of the student's parents or other family member; (c) The address of the student or student's family; (d) A personal identifier, such as the student's social security number or student number; (e) A list of personal characteristics that would make the student's identity easily traceable; or (f) Other information that would make the student's identity easily traceable" (34 CFR Section 99.3).
Based upon the foregoing, disclosure of students' names or other aspects of records that would make a student's identity easily traceable must in my view be withheld in order to comply with federal law.
I note that the term disclosure is defined in the regulations to mean:
"to permit access to or the release, transfer, or other communication of education records, or the personally identifiable information contained in those records, to any party, by any means, including oral, written, or electronic means."
In consideration of FERPA, if the Board discusses an issue involving personally identifiable information derived from a record concerning a student, I believe that the discussion would deal with a matter made confidential by federal law that would be exempt from the Open Meetings Law.
Notwithstanding the FERPA, I believe that the Board would have the ability to discuss the discipline of specific students in executive session. Section 105(1)(f) of the Open Meetings Law permits a public to conduct an executive session to discuss:
"the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation..."
Therefore, when the Board discusses a disciplinary matter that focuses upon a particular student or students, the discussion could in my opinion validly be held in an executive session. With respect to the Freedom of Information Law, the initial ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is the FERPA, and insofar as education records would if disclosed identify a particular student or students, I believe that they would be exempted from disclosure.
In short, in my view, because it is a federal statute, FERPA supersedes state laws.
It is also noted that the federal regulations promulgated under FERPA, 34 CFR Part 99, were recently amended. The phrase "education records" has always excluded records of a "law enforcement unit", a term defined in §99.8 of the regulations. In addition, for the first time, the regulations refer specifically to student discipline. In §99.3, "disciplinary action or proceeding" is defined to mean:
"the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to students of the agency or institution."
Further, relevant to the issue is the commentary appearing in the Federal Register pertaining the regulations (Federal Register,Vol. 60, No. 10, January 17, 1995) in which it was stated that the United States Department of Education:
"...remains legally constrained to conclude that records of an institution's disciplinary action or proceeding are 'education records' under FERPA, not law enforcement unit records, and that excluding these records from definition of 'education records' can be accomplished only through a statutory amendment of FERPA by Congress."
As such, even though the matter at hand relates to law enforcement, because the records involve student discipline, I believe that they are exempted from disclosure insofar as they are personally identifiable to a student or students. Assuming that the names of the students are known to the public, the deletion of identifying details would not to protect their privacy under FERPA. However, when such deletions can be made with a reasonable certainty that the remainder of the record would not make a student's identity easily traceable, the remainder would in my view be available to the extent provided by the Freedom of Information Law.
Lastly, I believe that the protection of privacy accorded by FERPA remains in effect until the parent of a minor student or the student upon reaching majority consents to disclosure, or until it can be demonstrated that the student to whom the record pertains is deceased.
I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance. Should any further questions arise, pleas feel free to contact me.
Robert J. Freeman
cc: Board of Education