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October 31, 1997

Mr. John E. Fitzgerald, Jr.
City Attorney
447 Glen Street - P.O. Box 619
Glens Falls, NY 12801-0619

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. Fitzgerald:

I have received your letter of September 25 in which you sought advice concerning the
adoption of a policy concerning sexual harassment by the City of Glens Falls.

Specifically, you asked whether "written reports of an incident of alleged sexual harassment
submitted by an employee to the Sexual Harassment Committee could be 'foiled' by an outside
interested party." Questions have also arisen concerning whether such a report, "if not initially
reachable, could be foiled after any disposition or disciplinary action by the city."

In this regard, I am unfamiliar with other municipalities' sexual harassment policies.
However, in conjunction with the ensuing commentary, I believe that the kind of report to which you
referred may be withheld in great measure, if not in its entirety.

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.
From my perspective, two of the grounds for denial are pertinent to an analysis of the issue.

First, I believe that a complaint or report an incident of alleged sexual harassment submitted
by an employee to another City official or entity would constitute intra-agency material that falls
within the scope of §87(2)(g). That provision permits an agency to 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.

An allegation, in my view, could be withheld, for it would not consist of any of the kinds of
information required to be disclosed pursuant to subparagraphs (i) through (iv) of §87(2)(g).

Second, also significant is §87(2)(b), which enables an agency to withhold records insofar as
disclosure would constitute "an unwarranted invasion of personal privacy", although the standard
concerning privacy is flexible and may be subject to conflicting interpretations, the courts have
provided substantial direction regarding the privacy of public employees. It is clear that public
employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that
public employees are required to be more accountable than others. Further, the courts have found
that, as a general rule, records that are relevant to the performance of a public employee's 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, 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].

Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing,
Scaccia and Powhida, dealt with situations in which determinations indicating the imposition of some
sort of disciplinary action pertaining to particular public employees were found to be available.
However, when allegations or charges of misconduct have not yet been determined or did not result
in disciplinary action, 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)].

Again, at the time of the preparation of a complaint or report, there would be neither any
indication nor any finding that the claims made are more than unsubstantiated allegations.

I note, too, that the identity of the person making the complaint or allegation could also be
withheld, in view of the nature of the allegation, on the ground that disclosure would result in an
unwarranted invasion of that person's privacy.

Lastly, if there is a finding or determination that an employee has engaged in misconduct, it
is reiterated that judicial determinations indicate that the identity of the employee, the charges that
were sustained, and the penalty imposed must be made public. However, that determination is
separate from the initial report in which the allegation was made. In my view, it is likely that the
initial report would remain beyond the scope of public rights of access, irrespective of the final
determination of the matter.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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