Records for Straubenmuller Textile High School in Manhattan, 1935-1948

Reclaim The Records filed this request with the Department of Education of New York City, NY.
Est. Completion None
Status
Awaiting Appeal

Communications

From: Reclaim The Records

To Whom It May Concern:

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

Please provide a copy, preferably scanned, of the "all school census", the "attendance registers", and the "enrollment reports" for the years 1935-1948 for Straubenmuller Textile High School in Manhattan. The school is now known as the Bayard Rustin Educational Complex or the Humanities Educational Complex, and it is located at West 18th Street between Eighth and Ninth Avenues in Chelsea.

These records are believed to exist, as the New York State Archives lists these types of records in their New York Records Retention and Disposition Schedule ED-1 as "permanent".
(Online source: http://www.archives.nysed.gov/records/retention_ed-1_student-records )

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Brooke Schreier Ganz
Founder, Reclaim The Records
https://www.reclaimtherecords.org/

From: Beaufils Natacha

Ms. Ganz-

Please see the enclosed in regard to your FOIL requests.

Thank you.

Natacha Beaufils
Dept. of Education
Office of Legal Services

From: Reclaim The Records

Dear Records Access Appeals Officer,

I am writing to appeal the denial of my records request, which was made under the New York State Freedom of Information Law (FOIL). My request was originally submitted to the New York City Department of Education on February 18, 2016, through the website MuckRock.com. When your office finally got around to replying to my request on the first of August, far beyond the time limits legally required for a response, your office assigned it the identification number of F12-536-2016.

Your office's statement that FERPA (the Family Educational Rights and Privacy Act) "prohibits disclosure of personally identifiable information constituting or derived from education records, absent consent of
the parent or eligible student, or the existence of a specifically enumerated exception in FERPA that would permit non-consensual disclosure" is true.

But it conveniently omits the fact that my request does indeed fall under a "specifically enumerated exception in FERPA". Specifically, my request is seeking access to historical records that are the equivalent of what we would today call "directory information", which is a specific exception to FERPA.

My original records request asked your office for copies of:
"...the "all school census", the "attendance registers", and the "enrollment reports" for the years 1935-1948 for Straubenmuller Textile High School in Manhattan".

To the extent that any of those requested historical records contain material that are equivalent to FERPA's modern definition of "directory information", they ought to be disclosed. If there are some items in these historical records that need to be withheld because they do not meet the modern definition of directory information, such as the names of the students' parents, then please redact only those particular pieces of overly-invasive data and provide the rest.

Please see, for example, the text of this Frequently Asked Questions (FAQ) web page about FERPA from the US Department of Education:

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"4. Under what circumstances may a school disclose information from education records without consent?

There are several exceptions to FERPA's general prior consent rule that are set forth in the statute and the regulations. See § 99.31 of the FERPA regulations. One exception is the disclosure of "directory information" if the school follows certain procedures set forth in FERPA. (34 CFR § 99.31(a)(11).)

5. What is "Directory Information"?

FERPA defines "directory information" as information contained in the education records of a student that would not generally be considered harmful or an invasion of privacy if disclosed. Typically, "directory information" includes information such as name, address, telephone listing, date and place of birth, participation in officially recognized activities and sports, and dates of attendance. A school may disclose "directory information" to third parties without consent if it has given public notice of the types of information which it has designated as "directory information," the parent's or eligible student's right to restrict the disclosure of such information, and the period of time within which a parent or eligible student has to notify the school in writing that he or she does not want any or all of those types of information designated as "directory information." The means of notification could include publication in various sources, including a newsletter, in a local newspaper, or in the student handbook. The school could also include the "directory information" notification as part of the general notification of rights under FERPA. The school does not have to notify a parent or eligible student individually. (34 CFR § 99.37.)"

[ Online reference: http://www2.ed.gov/policy/gen/guid/fpco/faq.html#q4 ]
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In other words, the US Department of Education itself explicitly states that school directory information is available as an exception under FERPA, rather than disallowed under FERPA, as your office has claimed in your response.

The actual citation of the law, describing what types of data are considered to be directory information, is here:

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"§99.3 What definitions apply to these regulations?

Directory information means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.

(a) Directory information includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.

(b) Directory information does not include a student's—

(1) Social security number; or

(2) Student identification (ID) number, except as provided in paragraph (c) of this definition.

(c) In accordance with paragraphs (a) and (b) of this definition, directory information includes—

(1) A student ID number, user ID, or other unique personal identifier used by a student for purposes of accessing or communicating in electronic systems, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a personal identification number (PIN), password or other factor known or possessed only by the authorized user; and

(2) A student ID number or other unique personal identifier that is displayed on a student ID badge, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a PIN, password, or other factor known or possessed only by the authorized user.

(Authority: 20 U.S.C. 1232g(a)(5)(A))"

[ Online reference: http://www.ecfr.gov/cgi-bin/retrieveECFR?n=34y1.1.1.1.33&r=PART&ty=HTML#se34.1.99_13 ]
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Furthermore, the New York State Committee on Open Government (COOG) has written extensively on how FERPA does and does not interact with privacy restrictions under New York State's FOIL. For example, their Advisory Opinion F-11208 (available online at http://docs.dos.ny.gov/coog/ftext/f11208.htm) deals with a similar situation concerning a public records request for attendance records and directory information for historical school records starting in the 1930's. In that case, the executive director of COOG Mr. Robert J. Freeman concurred that some of that data, at least the basic directory information if not the attendance registers, from these records would be available to the requestor, not prohibited under FERPA or under the Public Officers Law. Many other Advisory Opinions concerning the permitted release of directory information under FERPA are also available to the public on COOG's website: http://www.dos.ny.gov/coog/foil_listing/ff.html

I look forward to receiving a written response to this appeal within the next ten business days, as required by law. Please remember to send copies of this appeal and your response to the New York State Committee on Open Government too, as required by law. Thank you for your consideration and public service.

sincerely,

Brooke Schreier Ganz
Founder, Reclaim The Records
https://www.ReclaimTheRecords.org/

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