The Freedom of Information Law is a companion law to the Open Meetings Law, which provides that the deliberations of public officers that go into the making of public policy be performed in an open manner, and that all actions be taken in open session. The Freedom of Information Law affirms the public’s right to know how government operates and provides rights of access to records reflective of governmental decisions and policies. In addition, both law and Regulations of the Commissioner of Education prohibit the destruction of public records, except under certain conditions.
Under the Freedom of Information Law, all records of the Board of Education are made accessible to the public, except those records or portions of records that fall within one of ten categories of deniable records.
The law defines records as “any information kept, held, filed, produced or reproduced by, with or for an agency … in any physical form whatsoever . . .” Items such as tape recordings, microfilm and computer disks fall within the statutory definition of a record.
Generally, the law provides access to existing records. The Board need not create a record in response to a request. However, the Board is required to compile the following:
1. a record of the final vote of each member in every Board proceeding in which the member votes;
2. a record setting forth the name, public office address, title and salary of every officer or employee; and
3. a reasonably detailed current list by subject matter of all records in possession of the Board, whether or not the records are accessible.
Designation of Records Access Officer
The Regulations of the Committee on Open Government require that a records access officer (or officers) be appointed to coordinate a Board’s response to public requests for records.
The records access officer is responsible for keeping the subject matter list up to date, assisting in identifying the records sought, making the records promptly available or denying access to the records in whole or in part and explaining the reasons for denial, providing copies or permitting copies to be made, certifying that a copy is a true copy and, if records cannot be found, certifying either that the Board does not have possession of the requested records or that the Board does have the records but they cannot be found after diligent search.
Requests for Records
The Board may require that requests for information be made in writing. The request shall reasonably describe the record(s) sought. The requester should supply, if possible, information regarding dates, file designations, or any other information that will help find the requested records. The records access officer has the responsibility of identifying and locating the records sought.
Within five business days of receipt of a request the district must make the record available, deny access in writing giving the reason(s) for denial, or furnish a written acknowledgment of receipt of the request and a statement of the approximate date when the request will be granted or denied.
Except where a different fee is prescribed by statute, the district will charge for inspection, certification or search for records, 25 cents per photocopy up to 9 by 14 inches. Fees for copies of other records will be charged based upon actual cost of reproduction.
Section 87(2) of the Public Officers Law allows a Board to deny access to information in ten enumerated categories. Deniable records include records or portions thereof that:
1. are specifically exempted from disclosure by state or federal statute. This category allows a Board to deny access to information that other laws deem to be confidential. For example, under this exception, a Board may deny access to:
* student identifiable information, which is made available to the parent and eligible student over 18 years old, and is otherwise confidential under the federal Family Educational Rights and Privacy Act (“Buckley Amendment”);
* child abuse reports, which are confidential under Social Services Law Section 422(4);
* material prepared for litigation or otherwise privileged as an attorney’s work product pursuant to state or federal rules of civil procedure.
2. would if disclosed result in an unwarranted invasion of personal privacy. This includes disclosure of employment, medical or credit histories, or personal references of applicants for employment, and disclosure of information of a personal nature which has been reported in confidence to the Board or which would result in economic or personal hardship and when such information is not relevant to the work of the Board. This exception does not apply, however, when a person seeks access to his or her own records, when the person consents in writing to disclosure of his or her own records, or when identifying details are deleted. Social security numbers, home addresses and telephone numbers are commonly denied under this ground. In addition, the statute expressly authorizes a Board to refuse sale or release of names and addresses if such lists would be used for commercial or fund-raising purposes.
3. would if disclosed impair present or imminent contract awards or collective bargaining negotiations.
or collective bargaining negotiations.
4. are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise.
5. are compiled for law enforcement purposes and which disclosed would: (i) interfere with law enforcement investigations or judicial proceedings; (ii) deprive a person of a right to a fair trial or impartial adjudication; (iii) identify a confidential source or disclose confidential information relative to a criminal investigation; or (iv) reveal criminal investigative techniques or procedures, except routine techniques and procedures.
6. would if disclosed endanger the life or safety of any person.
7. are interagency or intra-agency communications, except to the extent that such materials are:
* statistical or factual tabulations or data;
* instructions to staff that affect the public;
* final agency policy or determination.
* external audits, including but not limited to audits performed by the comptroller and the federal government.
This is a common ground for denial by Boards of Education of memoranda or letters which are basically advisory in nature transmitted from one school official to another or to an official of another agency.
8. are examination questions or answers that are requested prior to the final administration of such questions.
9. are computer access codes.
10. are photographs, microphotographs, videotapes or other recorded images prepared under authority of section 1111-a of the Vehicle and Traffic Law.
Denial of Access and Appeal
The Regulations of the Committee on Open Government require that a denial of access be in writing, state the reason for the denial and advise the person denied access of the right to appeal and to whom an appeal should be directed. An appeal must be made within 30 days of a denial.
Upon receipt of an appeal, the Board, Superintendent or person designated to hear appeals, has ten business days to explain in writing the reason(s) for denial or to provide access to the records. Copies of all appeals and determinations must be sent to:
Committee on Open Government
New York State Department of State
162 Washington Avenue
Albany, New York 12231
Pursuant to section 89 of the Public Officers Law a final denial of access may be appealed to court.
The Board is required by the Regulations of the Committee on Open Government to post conspicuously, and/or publicize in a local newspaper the locations where records are made available for inspection and copying; the name, title, business address, and business telephone number of the records access officer(s); and the right to appeal a denial of access and the name and business address of the entity to which appeals should be directed.
Records Retention and Disposition
Under the Arts and Cultural Affairs Law and the Regulations of the Commissioner of Education, no district officer may destroy, sell or otherwise destroy any public record without the consent of the Commissioner. Formal consent to records disposition shall be presumed when a public record has been:
- maintained in excess of the retention period set forth in Records Retention and Disposition Schedule ED-1 promulgated by the Commissioner. The Board must review and adopt the schedule by formal resolution prior to any disposition of public records. The formal consent to dispose of public records in accordance with the schedule shall remain in effect until the Board rescinds its resolution, the Commissioner withdraws his/her consent, or the schedule is superseded or replaced by the Commissioner; or
- duplicated in accordance with the reproduction process and the preservation and examination requirements established by the Regulations of the Commissioner. Such a reproduction shall be deemed to be an original record for all purposes.
A Board may dispose of or remove certain information from specified employee disciplinary, investigative and performance evaluation records prior to the expiration of the required minimum retention period without the consent of the Commissioner, if the disposition or removal is based upon a provision of a collective bargaining agreement in effect between the Board and a collective bargaining unit.
If, however, there is a need or desire to dispose of records which are not listed on the records retention and disposition schedule, records whose retention periods have not expired but have been damaged by natural or mandate disasters, or records which predate 1910 even if they have been reproduced by microphotography or other means, a Board must obtain special approval from the Commissioner to do so.
The Arts and Cultural Affairs Law and the Regulations of the Commissioner of Education require that, the Board designate a records management officer to oversee a program for the orderly and efficient management of district records.
Ref: Family Educational Rights and Privacy Act (FERPA), 20 USC §1232g
Public Officers Law §§84 et seq. Educational Law §§1708(3); 2116
Arts and Cultural Affairs Law, Article 57-a(Local Government Records Law)
Social Services Law §422(4)
8 NYCRR Part 185
21 NYCRR Part 1401
Records Retention and Disposition Schedule ED-1, State Education Department
New York News v. Grinker, 142 Misc. 2d 325 (Supp. Ct. New York County 1989)