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July 11, 1997

 

 

 

Mr. Mark Streb
Assistant to Mayor
City of Troy
Office of the Mayor
City Hall
Monument Square
Troy, NY 12180

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 Mr. Streb:

As you are aware, I have received your letter of June 10.
Please accept my apologies for the delay in response. You have
sought an advisory opinion concerning a request made under the
Freedom of Information Law for "disciplinary records" involving
employees of the City of Troy Department of Public Works
"pertaining to trash pick up and removal during the year of 1997."
In response to the request, you disclosed the records without the
names of those who were disciplined. The materials attached to
your letter indicate that three employees of the Department of
Public Works "were suspended without pay" for one day "for failure
to follow departmental rules concerning trash removal", that the
suspensions "were the result of a negotiated settlement between the
workers, their union (CSEA) and the city", and that as part of the
settlement, "the city agreed not to release the names of the
individuals to the public."

You added that you informed the applicant that you requested
an opinion from the Committee, and that upon its receipt, you "will
comply."

From my perspective, the identities of the employees who were
disciplined must be disclosed. However, I note that while your
reliance on the Committee on Open Government is gratifying,
opinions rendered by this office are not binding. With regard to
the substance of the matter, I offer the following comments.

It is emphasized at the outset that 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. In my view,
two of the grounds for denial are relevant in consideration of
rights of access to the records in question.

Perhaps most significant to an analysis of the ability to
withhold the information sought is §87(2)(b), which 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. 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 relevance, §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 final agency
determinations, I believe that those determinations 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, 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].

With respect to the agreement to withhold the names of the
employees, 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".

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 another more recent 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).

In the context of the situation at issue, I believe that the
outcome, the settlement, represents an acceptance of discipline on
the part of the employees in question. It is my understanding that
disciplinary action can be imposed only after charges have been
made, a hearing held and a determination indicating a finding of
misconduct has been rendered, i.e., as in a proceeding conducted
pursuant to §75 of the Civil Service Law, or, as in this case, when
in lieu of the initiation of charges and a formal disciplinary
proceeding, a public employee agrees to some sort of sanction,
penalty or punishment. As suggested by the Court in Anonymous,
there is no distinction in substance between a finding of guilt
after a hearing and an admission of guilt as a means of avoiding
such a proceeding.

The same decision 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).

Most recently, in LaRocca v. Board of Education of Jericho
Union Free School District [632 NYS 2d 576 (1995)], the Appellate
Division held that a settlement agreement was available insofar as
it included admissions of misconduct. In that case, 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 contrast, when allegations or charges of misconduct have
not yet been determined or did not result in disciplinary action or
a finding of misconduct, the records relating to such allegations
may, in my view, be withheld, for disclosure would result in an
unwarranted invasion of personal privacy [see e.g., Herald Company
v. School District of City of Syracuse, 430 NYS 2d 460 (1980)].
Similarly, to the extent that charges are dismissed or allegations
are found to be without merit, I believe that they may be withheld.
As stated earlier, the records in this instance do not involve mere
allegations; admissions have been made, and disciplinary action has
been or will be taken.

Pertinent is one of the first decisions rendered under the
Freedom of Information Law, a case cited earlier, which dealt
specifically with reprimands of three police officers. In that
holding, the Court concluded that:

"To disclose these will not result in an
unwarranted invasion of personal privacy; they
are 'relevant to the ordinary work of the
municipality'. In effect, they are 'final
opinions' and 'final determinations' which the
Legislature directed be made available for
public inspection. Disclosure, of course,
will reveal the names of the police officers
who were reprimanded but also let it be known,
by implication, which others were not
censured" (Farrell, supra, 908-909).

Lastly, the courts have consistently interpreted the Freedom
of Information Law in a manner that fosters maximum access. As
stated by the Court of Appeals more than a decade ago:

"To be sure, the balance is presumptively
struck in favor of disclosure, but in eight
specific, narrowly constructed instances where
the governmental agency convincingly
demonstrates its need, disclosure will not be
ordered (Public Officers Law, section 87, subd
2). Thus, the agency does not have carte
blanche to withhold any information it
pleases. Rather, it is required to articulate
particularized and specific justification and,
if necessary, submit the requested materials
to the court for in camera inspection, to
exempt its records from disclosure (see Church
of Scientology of N.Y. v. State of New York,
46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of
one of these statutory exemptions may
disclosure be withheld" [Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)].

In a decision that was cited earlier, the Court of Appeals 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).

For the reasons described above, it is my opinion that the
names of the employees must be disclosed.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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