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June 25, 1997

 

 

 

Ms. Mary Caroline Powers
City Editor
The Saratogian & Community News
20 Lake Avenue
Saratoga Springs, NY 12866

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 Ms. Powers:

I have received your letter of June 3 in which you sought an
advisory opinion concerning a propriety of a denial of access to a
record by Leon Reed, Superintendent of the Schuylerville Central
School District.

By way of background, the materials appended to your letter
indicate that disciplinary charges were initiated by the
Superintendent against Michael LeBeau, a tenured teacher, pursuant
to §3020-a of the Education Law. In lieu of engaging in the
procedures and eventual determination of charges under §3020-a, Mr.
LeBeau and the District entered into an agreement, "thereby
dispensing with the need for further litigation or hearings." Part
of the agreement involves the acceptance of a suspension of twenty-six teaching days without pay, plus a forfeiture of four days pay,
as well as the acceptance of a "letter of reprimand" that is
referenced as "Attachment A." Your request for the letter of
reprimand was denied and is the subject of your inquiry. Further,
a portion of the agreement provides that "No statements to anyone
or press releases concerning any aspect of this stipulation
(including its attachments)...shall be made by any party..."

From my perspective, while neither of the parties may be
required to discuss or disclose information pertaining to the
settlement on their own initiative, the District is required
nonetheless to disclose the letter of reprimand in response to a
request made pursuant to the Freedom of Information Law [see Paul
Smith's College v. Cuomo, 186 AD 2d 888 (1992)]. In this regard,
I offer the following comments.

First, as a 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 (i) of the Law.

Second, 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 §87(2)(b), which permits
an agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy". In
addition, as you are aware, §89(2)(b) provides a series of examples
of 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..."

Another decision also required the disclosure of a settlement
agreement between a teacher and a school district following the
initiation of disciplinary proceedings under §3020-a of the
Education Law (Buffalo Evening News v. Board of Education of the
Hamburg School District and Marilyn Will, Supreme Court, Erie
County, June 12, 1987). Further, that decision relied heavily upon
an opinion rendered by this office.

It has been held in variety of circumstances that a promise or
assertion of confidentiality cannot be upheld, unless a statute
specifically confers confidentiality. In Gannett News Service v.
Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780
(1979)], a state agency guaranteed confidentiality to school
districts participating in a statistical survey concerning drug
abuse. The court determined that the promise of confidentiality
could not be sustained, and that the records were available, for
none of the grounds for denial appearing in the Freedom of
Information Law could justifiably be asserted. In a decision
rendered by the Court of Appeals, it was held that a state
agency's:

"long-standing promise of confidentiality to
the intervenors is irrelevant to whether the
requested documents fit within the
Legislature's definition of 'record' under
FOIL. The definition does not exclude or make
any reference to information labeled as
'confidential' by the agency; confidentiality
is relevant only when determining whether the
record or a portion of it is exempt..."
[Washington Post v. Insurance Department, 61
NY 2d 557, 565 (1984)].

In another decision involving a settlement agreement between
a school district and a teacher, it was held in Anonymous v. Board
of Education [616 NYS 2d 867 (1994)] that:

"...it is disingenuous for petitioner to argue
that public disclosure is permissible...only
where an employee is found guilty of a
specific charge. The settlement agreement at
issue in the instant case contains the
petitioner's express admission of guilt to a
number of charges and specifications. This
court does not perceive the distinction
between a finding of guilt after a hearing and
an admission of guilt insofar as protection
from disclosure is concerned" (id., 870).

The court also referred to contentions involving privacy as
follows:

"Petitioner contends that disclosure of the
terms of the settlement at issue in this case
would constitute an unwarranted invasion of
his privacy prohibited by Public Officers Law
§ 87(2)(b). Public Officers Law § 89(2)(b)
defines an unwarranted invasion of personal
privacy as, in pertinent part, '(i) disclosure
of employment, medical or credit histories or
personal references of applicants for
employment.' Petitioner argues that the
agreement itself provides that it shall become
part of his personnel file and that material
in his personnel file is exempt from
disclosure..." (id.).

In response to those contentions, the decision stated that:

"This court rejects that conclusion as
establishing an exemption from disclosure not
created by statute (Public Officers Law §
87[2][a]), and not within the contemplation of
the 'employment, medical or credit history'
language found under the definition of
'unwarranted invasion of personal privacy' at
Public Officers Law § 89(2)(b)(i). In fact,
the information sought in the instant case,
i.e., the terms of settlement of charges of
misconduct lodged against a teacher by the
Board of Education, is not information in
which petitioner has any reasonable
expectation of privacy where the agreement
contains the teacher's admission to much of
the misconduct charged. The agreement does
not contain details of the petitioner's
personal history-but it does contain the
details of admitted misconduct toward
students, as well as the agreed penalty. The
information is clearly of significant interest
to the public, insofar as it is a final
determination and disposition of matters
within the work of the Board of Education and
reveals the process of and basis for
government decision-making. This is not a
case where petitioner is to be protected from
possible harm to his professional reputation
from unfounded accusations (Johnson Newspaper
Corp. v. Melino, 77 N.Y.2d 1, 563 N.Y.S.2d
380, 564 N.E.ed 1046), for this court regards
the petitioner's admission to the conduct
described in the agreement as the equivalent
of founded accusations. As such, the
agreement is tantamount to a final agency
determination not falling within the privacy
exemption of FOIL 'since it was not a
disclosure of employment history.'" (id.,
871).

In the context of your inquiry, I believe that the letter of
reprimand is part of "the agreed penalty." In my view it is
clearly part of the District's final determination of the matter,
and just as clearly, it bears upon the performance of the teacher's
official duties.

Most recently, in LaRocca v. Board of Education of Jericho
Union Free School District [220 AD 2d 424, 632 NYS 2d 576 (1995)],
charges were initiated under §3020-a of the Education Law, but were
later "disposed of by negotiation and settled by an Agreement"
(id., 577) and withdrawn. The court rejected claims that the
record could be characterized as an employment history that could
be withheld as an unwarranted invasion of privacy, and found that
a confidentiality agreement was invalid. Specifically, it was
stated that:

"Having examined the settlement agreement, we
find that the entire document does not
constitute an 'employment history' as defined
by FOIL (see, Matter of Hanig v. State of New
York Dept. of Motor Vehicles, supra) and it is
therefore presumptively available for public
inspection (see, Public Officers Law § 87[2];
Matter of Farbman & Sons v. New York City
Health and Hosps. Corp., supra, 62 N.Y.2d 75,
476 N.Y.S.2d 69, 464 N.E.2d 437). Moreover,
as a matter of public policy, the Board of
Education cannot bargain away the public's
right of access to public records (see, Board
of Educ., Great Neck Union Free School Dist.
v. Areman, 41 N.Y.2d 527, 394 N.Y.S.2d 143,
362 N.E.2d 943)" (id., 578, 579).

In sum, based on judicial decisions involving records
analogous to that in question, I believe that the reprimand must be
disclosed.

In an effort to enhance compliance with and understanding of
the Freedom of Information Law and its judicial interpretation, a
copy of this opinion will be forwarded to the Superintendent.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Leon J. Reed, Superintendent