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FOIL-AO-13653

October 17, 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 and the correspondence relating to it. You have
sought guidance concerning a request for records involving "the current status of medical insurance
coverage, including descriptions of policy, individuals covered, manner and source of all premium
payments" relating to certain full and part-time employees of Delaware County.

In this regard, I offer the following comments.

First, the Freedom of Information Law, in brief, 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.

It is noted that 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.

The provision in the Freedom of Information Law of most significance concerning the
information in question is, in my view, §87(2)(b). That provision permits an agency to withhold
records to the extent that 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, supra; Capital Newspapers v. Burns, 109 AD 2d 292 (1985)
aff'd 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].

It is noted that in Matter of Wool, the applicant requested a list of employees of a town
"whose salaries were subject to deduction for union membership dues payable to Civil Service
Employees Association...". In determining the issue, the Court held that:

"...the Legislature has established a scale to be used by a
governmental body subject to the 'Freedom of Information Law' and
to be utilized as well by the Court in reviewing the granting or denial
of access to records of each governmental body. At one extreme lies
records which are 'relevant or essential to the ordinary work of the
agency or municipality' and in such event, regardless of their
personal nature or contents, must be disclosed in toto. At the other
extremity are those records which are not 'relevant or essential' -
which contain personal matters wherein the right of the public to
know must be delicately balanced against the right of the individual
to privacy and confidentiality.

"The facts before this Court clearly are weighted in favor of
individual rights. Membership or non-membership of a municipal
employee in the CSEA is hardly necessary or essential to the ordinary
work of a municipality. 'Public employees have the right to form,
join and participate in, or to refrain from forming, joining or
participating in any employee organization of their choosing.'
Membership in the CSEA has no relevance to an employee's on-the-
job performance or to the functioning of his or her employer."

Consequently, it was held that portions of records indicating membership in a union could
be withheld as an unwarranted invasion of personal privacy. Based on the Wool decision, it might
be contended that whether a public employee is covered by a health insurance has no relevance to
the performance of that person's official duties, and that, therefore, such information may be
withheld.

From my perspective, such a conclusion would be overly restrictive. In Capital Newspapers
v. Burns, supra, the issue involved records reflective of the days and dates of sick leave claimed by
a particular police officer. The Appellate Division, as I interpret its decision, held that those records
were clearly relevant to the performance of the officer's duties, for the Court found that:

"One of the most basic obligations of any employee is to appear for
work when scheduled to do so. Concurrent with this is the rights of
an employee to properly use sick leave available to him or her. In the
instant case, intervenor had an obligation to report for work when
scheduled along with a right to use sick leave in accordance with his
collective bargaining agreement. The taxpayers have an interest in
such use of sick leave for economic as well as safety reasons. Thus
it can hardly be said that disclosure of the dates in February 1983
when intervenor made use of sick leave would constitute an
unwarranted invasion of privacy. Further, the motives of petitioners
or the means by which they will report the information is not
determinative since all records of government agencies are
presumptively available for inspection without regard to the status,
need, good faith or purpose of the applicant requesting access..."
[109 AD 2d 92, 94-95 (1985)].

Perhaps more importantly, in a statement concerning the intent and utility of the Freedom of
Information Law, the Court of Appeals affirmed and found that:

"The Freedom of Information Law expresses this State's strong
commitment to open government and public accountability and
imposes a broad standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New York City Health
and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in
furtherance of the public's vested and inherent 'right to know', affords
all citizens the means to obtain information concerning the day-to-
day functioning of State and local government thus providing the
electorate with sufficient information 'to make intelligent, informed
choices with respect to both the direction and scope of governmental
activities' and with an effective tool for exposing waste, negligence
and abuse on the part of government officers" (Capital Newspapers
v. Burns, supra, 565-566).

Based on the foregoing, it might appropriately be contended that the need to enable the
public to make informed choices and provide a mechanism for exposing waste or abuse must be
balanced against the possible infringement upon the privacy of a public officer or employee. The
magnitude of an invasion of privacy is conjectural and must in many instances be determined
subjectively. In this instance, if a court found the invasion of one's privacy to be substantial, it
might be determined that the interest in protecting privacy outweighs the interest in identifying
employees receiving coverage. It is possible, too, that a court could find that the identities of
employees receiving coverage should be disclosed, but that the cost of coverage, by named
employee, thereby indicating the nature of coverage (i.e., individual as opposed to family coverage)
may be withheld, and that the cost of coverage should be disclosed generically. On the other hand,
in conjunction with the direction provided by the Court of Appeals in the passage quoted earlier,
it might be determined that the information sought should be disclosed in its entirety in view of the
public's significant interest in knowing how public monies are being expended.

In consideration of the factors that have been discussed, it is my view that a disclosure
indicating that a public officer or employee is covered by a health insurance plan at public expense
would not represent or reveal an intimate detail of one's life. Arguably, the record reflective of the
dates of sick leave claimed by a public employee found by the courts to be available represents a
more intimate or personal invasion of privacy. However, if a disclosure of the cost of coverage for
a particular employee indicates which plan that person has chosen or whether his or her plan
involves individual or dependent coverage, such a disclosure may potentially result in the revelation
of a number of details of a person's life and an unwarranted invasion of personal privacy. For
instance, an indication of cost might reveal whether the coverage involves medical treatment
routinely provided by a clinic, as opposed to a primary care physician; it also may indicate the
nature of coverage, i.e., whether coverage is basic or includes catastrophic care. Again, the cost
may also reveal whether coverage is for an employee alone or for that person's family or dependents.

Most appropriate in my opinion would be a disclosure of costs of health care coverage by
category in terms of plans that are offered or available to officers or employees. A separate
disclosure should identify those officers or employees who receive coverage. However, in
conjunction with the preceding commentary, I do not believe that the County would be required to
disclose the type of coverage an officer or employee has chosen or which specific dependents are
covered under the plan.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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