May 1, 2002
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.
I have received your letter of April 10 and the correspondence relating to it. You have sought an advisory opinion concerning a request for "a copy of a reference letter provided to the Banking Department in connection with an individual's...application to obtain a license to operate as a mortgage broker..." The attorney for the applicant indicated that his employer "acknowledged his authorship of the letter" and contended, therefore, that there is "no privacy issue concerning the letter's origin."
From my perspective, notwithstanding the applicant's knowledge of the identity of the author of the letter, it may be withheld. In this regard, I offer the following remarks.
As you are aware, 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.
One of the grounds for denial, §87(2)(b), states that an agency may withhold records when disclosure would "constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article..." In turn, §89(2)(b)(i) states that an unwarranted invasion of personal privacy includes, but shall not be limited to:
"...disclosure of employment, medical or credit histories of personal references of applicants for employment..."
Based upon the direction provided in the language quoted above, I believe that a letter of reference pertaining to an applicant for employment could justifiably be withheld. While the person seeking the record is not an applicant for employment, but rather an applicant for a license, I believe that the rationale and justification for a denial of access would be the same.
In the case of a reference submitted in relation to an application for employment, the exception to rights of access is, in my view, based on an intent and a need to ensure that the author can offer candid remarks concerning the applicant without a requirement that his or her views will be made known to the applicant. As indicated in the introductory language of §89(2)(b), situations in which disclosure would constitute an unwarranted invasion of personal privacy are not limited to the examples that follow. In this instance, the Banking Department has a need to obtain a frank assessment of the applicant by his employer and perhaps others, and without the capacity to withhold letters of reference for the purpose of protecting the privacy of the employer or others, it would be impeded in its ability to reach appropriate determinations to grant or deny applications for licenses.
I recognize that §89(2) indicates that portions of records might be made available following the deletion of personally identifying details. Nevertheless, the applicant is aware of the identity of the author, and consequently, the deletion of identifying details would not serve to protect the privacy of the author. It is noted that advice consistent with this commentary has been offered in a variety of contexts. For example, it has been advised that when allegations or complaints are made regarding licensees or public employees, those portions of the complaints that would identify complainants may be withheld to protect their privacy. However, if it is clear in consideration of the facts and circumstances that the deletion of a name or other identifier would not serve to protect the privacy of the complainant, it has been advised that the complaint may be withheld in its entirety.
It may be contended, too, that disclosure would contravene the Personal Privacy Protection Law. As a "data subject", the applicant generally enjoy rights of access to records about himself. However, insofar as the records pertain to or identify others, there are privacy considerations applicable to them. To the extent that the records identify others, §96(1) of the Personal Privacy Protection Law states that "No agency may disclose any record or personal information", except in conjunction with a series of exceptions that follow. One of those exceptions, §96(1)(c), involves a case in which a record is "subject to article six of this chapter [the Freedom of Information Law], unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter". Section 89(2- a) of the Freedom of Information Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision two of this section if such disclosure is prohibited under section ninety-six of this chapter". Consequently, if a state agency cannot disclose records pursuant to §96 of the Personal Privacy Protection Law, it is precluded from disclosing under the Freedom of Information Law.
I hope that I have been of assistance.
Robert J. Freeman