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 FOIL-AO-16262

October 23, 2006
E-MAIL

TO:

FROM: Camille S. Jobin-Davis, Assistant Director

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.

Dear

We are in receipt of your request for an advisory opinion concerning requests for copies of applications for appointment to two teaching positions posted in your school district. In response, the district released "a list of the certifications and educational degrees of the candidates", identifying the candidates by numbers. The district denied access to the candidates’ employment histories indicating that release would constitute an unwarranted invasion of personal privacy. The district also indicated that there is nothing in the Freedom of Information Law that requires disclosure of the name of an applicant to public employment. In this regard, it would appear that the district’s response is consistent with law, and we offer the following comments.

First, §89(7) of the Freedom of Information Law states that an agency, such as a school district, is not required to disclose the name of an applicant for appointment to public employment. Therefore, although the District could choose disclose the identities of the applicants who were not hired, it would not be obliged to do so.

Second, notwithstanding the foregoing, we believe that many aspects of the resumes or applications submitted regarding those who were not hired, as well as a variety of details regarding the person who was hired, as long as they do not reveal the identity of the applicant, must be disclosed.

As a general matter, 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 (j) of the Law. As suggested in the district’s response, one of the grounds for denial, §87(2)(b), states that an agency may withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy."

In a case in which an individual wanted to compare his qualifications with the qualifications of others, it was determined that resumes of those others must be disclosed, following the deletion of personally identifying details [see Harris v. City of University of New York, Baruch College, 114 AD 2d 805 (1985)].

With respect to the records pertaining to the incumbent of the position, we note that the judicial interpretation of the Freedom of Information Law indicates that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those individuals are required to be more accountable than others. The courts have found that, as a general rule, records that are relevant to the performance of the official duties of a public officer or employee 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, to the extent that items relating to public officers or employees are irrelevant to the performance of their 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, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal attorney that could indicate how that person spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social security numbers].

We point out, too, that it has been held that disclosure of a public employee's educational background would not constitute an unwarranted invasion of personal privacy and must be disclosed [see Ruberti, Girvin & Ferlazzo v. NYS Division of State Police, 641 NYS 2d 411, 218 AD 2d 494 (1996)]. Additionally, in a recent judicial decision, Kwasnik v. City of New York (Supreme Court, New York County, September 26, 1997), the court quoted from and relied upon an opinion rendered by this office and held that those portions of resumes, including information detailing one's prior public employment must be disclosed. The Committee's opinion stated that:

"If, for example, an individual must have certain types of experience, educational accomplishments or certifications as a condition precedent to serving in [a] particular position, those aspects of a resume or application would in my view be relevant to the performance of the official duties of not only the individual to whom the record pertains, but also the appointing agency or officers ... to the extent that records sought contain information pertaining to the requirements that must have been met to hold the position, they should be disclosed, for I believe that disclosure of those aspects of documents would result in a permissible rather than an unwarranted invasion [of] personal privacy. Disclosure represents the only means by which the public can be aware of whether the incumbent of the position has met the requisite criteria for serving in that position.

"The Opinion further stated that:

"Although some aspects of one’s employment history may be withheld, the fact of a person’s public employment is a matter of public record, for records identifying public employees, their titles and salaries must be prepared and made available under the Freedom of Information Law [see §87(3)(b)]."

In short, it is likely that some aspects of the resume of the incumbent must be disclosed, while others could be withheld to protect personal privacy.

With respect to your question concerning the enforceability of the privacy protections offered by the law, we note that the Freedom of Information Law is permissive. In other words, while the District may choose to withhold certain information when disclosure would constitute an unwarranted invasion of personal privacy, it is not prohibited from releasing such information to the public.

The only provision of law in New York State pertaining to a cause of action for the invasion of privacy is §51 of the Civil Rights Law. This provision prohibits the unauthorized use of a name or likeness for advertising purposes, and would not apply in the context of your inquiry.

On behalf of the Committee on Open Government we hope this is helpful to you.

CSJ:tt