Over the past few years, many school districts have experienced a significant increase in the number of requests for records and information maintained by the district. Most of these requests were pursuant to the state Freedom of Information Law (FOIL), but that is not the only law that districts must heed. The federal Family Education Rights and Privacy Act (FERPA) governs access to student education records by parents and others and limits what a school district may disclose. This article will explore some of the issues related to information requests as well as some circumstances that highlight the overlap between FOIL and FERPA.
FOIL, which is set forth in the Public Officers Law, provides the public with access to records maintained by government agencies in New York including public school districts. A “record” is broadly defined under the Public Officers Law as any information kept, held, filed, produced or reproduced in any physical form such as 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.
Under FOIL, all records are presumed to be public, upon request, unless the record falls into a category that is expressly exempt from disclosure under FOIL or some other law.
Although there is a presumption of access to all governmental records, there are many exceptions. Among the records that a school district may lawfully deny access to are those that:
- Would constitute an unwarranted invasion of personal privacy.
- Would impair contract awards or collective bargaining negotiations.
- Contain information gathered for law enforcement purposes that would interfere with investigations or
- Would, if disclosed, jeopardize the district’s ability
to protect its information technology assets.
Responding to a FOIL request can be challenging even for those with some familiarity with the law. The New York State Committee on Open Government, the state agency charged with overseeing and providing advice on FOIL, issues advisory opinions on the application of the law and its exceptions to specific situations, including those most often confronted by school districts. (Editor’s Note: For at least 35 years, every NYSSBA Convention has included a session led by a representative of the Committee on Open Government.)
Requests to disclose “educational records,” can be particularly sensitive. Broadly defined under FERPA, education records include but are not limited to grades, transcripts, class lists, student course schedules, health records and student disciplinary files.
FERPA gives the right to inspect and review a student’s education records maintained by the school to the parent/guardian of that student or to the student if eligible (i.e., 18 years old or older). Otherwise, any education record that is directly related to a student is confidential unless (1) a FERPA exception applies, (2) the parent/guardian or the eligible student waives the right to confidentiality, or (3) the information has been previously designated by the school district as “directory information.” A school district may designate directory information such as a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, such information may only be disclosed if statutory procedures are followed, including notice of the designation of directory information and the opportunity to opt out.
Compare these two examples:
- If a school district receives a FOIL request for the test scores of Student A from someone other than a parent/ guardian of Student A or Student A (if 18 or older), the district cannot disclose this information as it is an education record under FERPA. In some cases, the record can be disclosed after the personally identifiable information related to the student is removed. However, schools cannot release redacted records to a requester if the school reasonably believes that the requester knows the identity of the student to whom the education record relates or when the student’s identity can be readily deduced from the information provided. Therefore, in this example, the school district cannot disclose a redacted version of this record pursuant to FOIL because the request was related to one student.
- If a school district receives a FOIL request for all test scores in a class of 30 students, the test scores are an education record under FERPA. Therefore, the school district cannot disclose these records to the requester if they are in a format that contains personally identifiable information. However, once all identifying information is removed from a document, it ceases to be a FERPA education record. So, the school district can disclose these records so long as the school district withholds references to student names or other aspects of the records that would make a student’s identity easily traceable. If the test scores are prepared alphabetically, the school district would need to reorder the content of the record so that no student could be identified.
Notes or other records prepared by a teacher or other school official identifiable to a student can be particularly tricky. If they have been revealed or disclosed to any other person, and are more than just private memory aids, they would constitute an education record under FERPA. Absent an applicable FERPA exception, such record is only available to the parent/guardian of the student or the student if at least 18 years old. However, if these notes or records have not been shared or disclosed to any other person, FOIL would govern the right of access. Depending upon the particular situation, such documents may be entirely exempt from disclosure or redaction of personally identifiable information may be permissible under the invasion of personal privacy exception. The Committee on Open Government has advised that records identifiable to students, due to their age, can be withheld under this exception.
Another important consideration for school districts involves requests for video records, including security camera footage. When a video is “directly related” to a student and is maintained by the school district, it is considered to be an education record under FERPA. Thus, a school district may not have to disclose a video that:
- Is used in a student disciplinary action.
- Depicts a student in violation of local, state or federal law.
- Shows a student being injured, attacked, victimized, ill or having a health emergency.
Also, a video may not be subject to disclosure if the district shot the video with an intent to observe a specific student. Likewise, it may not be necessary to disclose a video if the audio or visual content of the video contains personally identifiable information.
If the video is an education record, only the parent/guardian of the depicted student or a depicted eligible student is entitled to inspect and review the video unless some other FERPA exception applies. In the event the video depicts multiple students, the school district must redact or segregate out the portions of the video directly related to other students, for example by pixilating or blurring the faces. If the school district is unable do so without destroying the meaning of the record, the parent/guardian of a depicted student or a depicted eligible student is entitled to inspect and review the video or to be informed of the information in the record directly related to their child/themself. In addition to FERPA, the unwarranted invasion of personal privacy exception in FOIL may provide a basis for a school district to withhold or redact portions of a video that depicts students.
Any school district in receipt of a FOIL request for records that may include student information should consult with their school attorney prior to responding to the request or disclosing any records. Districts should periodically revisit their policies and regulations to ensure they are sound, up-to-date and accurately address disclosure procedures. The goal is for school officials to work cooperatively with interested citizens while maintaining the privacy rights of its students.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Tyleana Venable of Jaspan Schlesinger Narendran LLP.