December 31, 1997
Mr. Jay Scott-Friedman
Three Village Central School District
200 Nicolls Road
East Setauket, NY 11733-9050
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. Scotto-Friedman:
I appreciate your transmission of a determination of an appeal
rendered under the Freedom of Information Law in response to a request
made by the president of the Three Village Teachers' Association. In short,
while I agree that the addresses of substitute teachers may be withheld, the
names of those persons must, in my view, be disclosed.
In this regard, I offer the following comments.
First, the purpose for which the request was made or the intended use
of the records are generally irrelevant to rights of access. When records are
accessible under the Freedom of Information Law, it has been held that they
should be made equally available to any person, regardless of one's status,
interest or the intended use of the records [see Burke v. Yudelson, 368 NYS
2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court
of Appeals, the State's highest court, has held that:
"FOIL does not require that the party
requesting records make any showing of need,
good faith or legitimate purpose; while its
purpose may be to shed light on government
decision-making, its ambit is not confined to
records actually used in the decision-making
process. (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.)
Full disclosure by public agencies is, under
FOIL, a public right and in the public interest,
irrespective of the status or need of the person
making the request" [Farbman v. New York
City Health and Hospitals Corporation, 62 NY
2d 75, 80 (1984)].
Farbman pertained to a situation in which a person involved in litigation
against an agency requested records from that agency under the Freedom of
Information Law. In brief, it was found that one's status as a litigant had no
effect upon that person's right as a member of the public when using the
Freedom of Information Law, irrespective of the intended use of the records.
Similarly, unless there is a basis for withholding records in accordance with
the grounds for denial the use of the records, is in my opinion irrelevant.
Second, 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, there is nothing secret about the names of
substitute teachers; their identities are made known to students and, indirectly
to parents and perhaps others. Further, payroll records required to be
maintained by all agencies must include reference to the name, public office
address, title and salary of every officer or employee of the agency [see
Freedom of Information Law, §87(3)(b)]. While substitute teachers may not
be "employees", they are paid by the District, and records of payments are
public. For those reasons, I do not believe that disclosure of substitute
teachers' names would constitute an unwarranted invasion of personal privacy.
With respect to home addresses, §89(7) of the Freedom of
Information Law states in part that nothing in that statute requires the
disclosure of the home address of a public employee. Again, a substitute
teacher may not be an employee; nevertheless, based on the direction provided
by the cited provision and the fact that the home address is largely irrelevant
to the performance of one's duties, your denial of access to the home
addresses of substitute teachers was, in my opinion, appropriate.
I hope that the foregoing serves to clarify your understanding of the
Freedom of Information Law and that I have been of assistance. If you would
like to discuss the matter, please feel free to contact me.
Robert J. Freeman
cc: Sheila MacFadyen