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FOIL-AO-13355

May 14, 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.

Dear

As you are aware, I have received your letter of April 11 in which you sought an advisory opinion concerning "how much information [you] can expect to obtain" pertaining to an employee of the Johnsburg Central School who was the subject of disciplinary charges and later resigned. Specifically, you raised the following questions:

"1) Should the board have named the individual Wendy Raymond when it took its first action on April 8 to suspend here, but did not name her?

2) Should the board have stated publicly in the April 8 meeting motion the reason for its disciplinary action of suspension without any pay against 'an employee' who we now know is Wendy Raymond?

3) Now that we know the name of the person in question because she has resigned, how much more detail must be publicly available according to FOIL? Does the Personal Privacy Protection Law apply here? For example, must the school release to us if requested:

Raymond' position/title at the school (we believe she is a staff member, not a teacher, but have not yet confirmed this) Her length of employment Her address and age Any prior disciplinary actions against her." In this regard, I offer the following comments.

First, the Personal Privacy Protection Law would not have been pertinent, for that statute applies only to records maintained by state agencies; it excludes units of local government, such as schools or school districts, from its coverage.

Second, it is unclear on the basis of your letter whether the subject of the action taken was a tenured employee. If she was tenured, §3020-a of the Education Law would have required that the Board initiate charges during an executive session. If she was not a tenured employee, the Board would nonetheless have had a basis for considering the matter in executive session. Section 105(1)(f) permits a public body to enter into 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..."

The issue clearly would involved either the employment history of a particular person or a matter leading to the discipline of a particular person, thereby enabling the Board to validly conduct an executive session.

Although the Open Meetings Law requires that a motion for entry into executive session indicate "the general area or areas of the subject or subjects to be considered", it has been advised that a motion to initiate charges, for example, need not identify the employee. Guidance to that effect has been offered based in part on the judicial interpretation of the Freedom of Information Law. In brief, it has been held that when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may be withheld on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §87(2)(b); Herald Company v. School District of the City of Syracuse, 430 NYS2d 460 (1980)].

In consideration of the foregoing and in response to the first two questions that you raised, I do not believe that the Board would have been required to name the subject of the discussion or that the charges, which were not proven, would have to have been disclosed.

Third, several of the remaining items of your interest must, in my view, be made available.

By way of background, there is nothing in the Freedom of Information Law that deals specifically with personnel records or personnel files. Further, the nature and content of so-called personnel files may differ from one agency to another, and from one employee to another. In any case, neither the characterization of documents as "personnel records" nor their placement in personnel files would necessarily render those documents "confidential" or deniable under the Freedom of Information Law (see Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980). On the contrary, the contents of those documents serve as the relevant factors in determining the extent to which they are available or deniable under the Freedom of Information Law. Two of the grounds for denial to which you alluded are relevant to an analysis of the matter; neither, however, could in my view serve to justify a denial of access.

Perhaps of greatest significance is the provision cited earlier, §87(2)(b), concerning unwarranted invasions of personal privacy.

While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers employees. It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public officers and employees are required to be more accountable than others. With regard to records pertaining to public officers and employees, the courts have found that, as a general rule, records that are relevant to the performance of a their official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, supra; Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

The other ground for denial of significance, §87(2)(g), states that an agency may withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter- agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld. Insofar as a request involves a final agency determination, I believe that such a determination must be disclosed, again, unless a different ground for denial could be asserted.

In terms of the judicial interpretation of the Freedom of Information Law, I point out that in situations in which allegations or charges have resulted in the issuance of a written reprimand, disciplinary action, or findings that public employees have engaged in misconduct, records reflective of those kinds of determinations have been found to be available, including the names of those who are the subjects of disciplinary action [see Powhida v. City of Albany, 147 AD 2d 236 (1989); also Farrell, Geneva Printing, Scaccia and Sinicropi, supra].

In Geneva Printing, supra, a public employee charged with misconduct and in the process of an arbitration hearing engaged in a settlement agreement with a municipality. One aspect of the settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding the agreement of confidentiality, which apparently was based on an assertion that "the public interest is benefited by maintaining harmonious relationships between government and its employees", the court found that no ground for denial could justifiably be cited to withhold the agreement. On the contrary, it was determined that:

"the citizen's right to know that public servants are held accountable when they abuse the public trust outweighs any advantage that would accrue to municipalities were they able to negotiate disciplinary matters with its employee with the power to suppress the terms of any settlement".

In so holding, the court cited a decision rendered by the Court of Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d 527), the Court of Appeals in concluding that a provision in a collective bargaining agreement which bargained away the board of education's right to inspect personnel files was unenforceable as contrary to statutes and public policy stated: 'Boards of education are but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public which they represent. (at p. 531).

A similar restriction on the power of the representatives for the Village of Lyons to compromise the public right to inspect public records operates in this instance.

The agreement to conceal the terms of this settlement is contrary to the FOIL unless there is a specific exemption from disclosure. Without one, the agreement is invalid insofar as restricting the right of the public to access.:

It was also found that the record indicating the terms of the settlement constituted a final agency determination available under the Law. The decision states that:

"It is the terms of the settlement, not just a notation that a settlement resulted, which comprise the final determination of the matter. The public is entitled to know what penalty, if any, the employee suffered...The instant records are the decision or final determination of the village, albeit arrived at by settlement..."

In consideration of the foregoing and your questions, it is clear that a public employee's title must be disclosed, for it clearly relates to the performance of one's duties. Records indicating length of one's employment would also be available based on the same rationale. I note, too, that attendance and leave records have been found to be accessible (see Capital Newspapers, supra). Similarly, in view of judicial decisions cited earlier, if there were determinations in which disciplinary action was taken, records reflective of those actions would also be accessible under the law. With respect the home address, §89(7) specifies that the home address of a present or former public employee need not be disclosed, and it has been consistently advised that one's age may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.

I hope that the foregoing serves to clarify your understanding of open government laws and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Education