June 24, 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 facts presented in your correspondence.
I have received your letter May 18. As I understand your comments, you are primarily interested in obtaining or knowing the reason for withholding addresses and telephone numbers of public employees as they appear in a variety of records.
In this regard, first, §89(7) of the Freedom of Information Law has long provided that nothing in that statute "shall require the disclosure of the home address of an officer or employee, former officer or employee or of a retiree of a public employees' retirement system..." Stated differently, the home address of a present or former public officer or employee need not be disclosed under the Freedom of Information Law.
Second, with respect to the home telephone number, one of the grounds for denial of access, as you may be aware, is §87(2)(b), which enables an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion 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. Further, 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, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].
Conversely, however, items that are irrelevant to the performance of one's official duties ordinarily would result in an unwarranted invasion of personal privacy if disclosed [see Seelig v. Sielaff, 201 AD2d 298 (1994)]; Matter of Wool (Supreme Court, Nassau County, NYLJ, November 22, 1977) and Minerva v. Village of Valley Stream (Supreme Court, Nassau County, May 20, 1981)]. From my perspective, one's home telephone number is clearly irrelevant to the performance of his or her official duties and may be withheld on the ground that disclosure would result in an unwarranted invasion of personal privacy.
Third, you expressed an interest in "ethics committee material" and financial disclosure forms. Here I point out that ethics committees or boards may have functions that differ from one municipality to the next and that the nature and content of financial disclosure statements will differ from one to the next. Nevertheless, enclosed for your review are written opinions rendered under the Freedom of Information Law within the past ten years that deal with municipal boards of ethics and financial disclosure statements.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Elizabeth Neville, Town Clerk