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January 15, 1998


Mr. Peter Henner
Attorney and Counselor at Law
P.O. Box 326
Clarksville, NY 12041-0326

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. Henner:

I have received your letter of November 20, as well as the
correspondence attached to it.

You have sought an advisory opinion concerning issues that have
arisen in relation to a request for certain records of the Department of
Correctional Services. In a letter of September 16 addressed to the
Department's records access officer, you requested:

"1) any documents which summarized, or present statistical
tabulations, of the number of applicants for the position of
Correction Officer who are disqualified by the Department of Correctional Services pursuant to §22-a of the
Corrections Law, 2) all letters of disqualification which
have been sent to prospective applicants for the position of
Correction Officer, 2) access to all disciplinary settlements
between the Department of Correctional Services (including
but not limited to those settlements negotiated by the Bureau
of Labor Relations with: a) individual Corrections Officers or
b) AFSCME Council 82 resolving allegations of disciplinary
misconduct which include allegations that the corrections
officer committed criminal conduct or was arrested for alleged
criminal activity, and 4) all opinions and awards of labor
arbitrators appointed pursuant to the contract agreement
between Council 82 and the State of New York where a
Correction Officer was found guilty of misconduct pertaining
to criminal activity, and/or pertaining to a Correction Officer's
conviction for criminal activity, and where a disciplinary
penalty was imposed."

In a response dated October 3, the first category of records was found
to be accessible. The second was denied on the ground that the Department
"does not maintain files in a manner which allows it to reproduce the
requested documents." In response to the third and fourth categories, you
were informed that the matter was "pending." You appealed the denial on
October 9 and on November 14, the records access officer indicated that your
request for both the third and fourth categories of records requested were
"denied as the records are not maintained in the manner in which they are
requested", and that "[s]ettlement agreements do not establish guilt." You
appealed again on November 20.

In this regard, I offer the following comments.

First, you contended that the Department did not comply with
§89(4)(a) of the Freedom of Information Law due to its failure to respond to
your appeal of October 9 within ten business days. I concur and point out
that a response indicating that a determination of a request is "pending" is, in
my view, insufficient. The Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to requests
and appeals. Specifically, §89(3) of the Freedom of Information Law states
in part that:

"Each entity subject to the provisions of this
article, within five business days of the receipt
of a written request for a record reasonably
described, shall make such record available to
the person requesting it, deny such request in
writing or furnish a written acknowledgment
of the receipt of such request and a statement
of the approximate date when such request
will be granted or denied..."

If neither a response to a request nor an acknowledgment of the receipt of a
request is given within five business days, or if an agency delays responding
for an unreasonable time after it acknowledges that a request has been
received, a request may, in my opinion, be considered to have been
constructively denied. In such a circumstance, I believe that the denial may
be appealed in accordance with §89(4)(a) of the Freedom of Information Law.
That provision states in relevant part that:

"...any person denied access to a record may
within thirty days appeal in writing such denial
to the head, chief executive, or governing
body, who shall within ten business days of the
receipt of such appeal fully explain in writing
to the person requesting the record the reasons
for further denial, or provide access to the
record sought."

In addition, it has been held that when an appeal is made but a
determination is not rendered within ten business days of the receipt of the
appeal as required under §89(4)(a) of the Freedom of Information Law, the
appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d
774 (1982)].

Second, a key issue appears to involve extent to which the request
"reasonably describes" the records sought as required by §89(3) of the
Freedom of Information Law. As you may be aware, it has been held by the
Court of Appeals that to deny a request on the ground that it fails to
reasonably describe the records, an agency must establish that "the
descriptions were insufficient for purposes of locating and identifying the
documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the
request due to its breadth and also stated that:

"respondents have failed to supply any proof
whatsoever as to the nature - or even the
existence - of their indexing system: whether
the Department's files were indexed in a
manner that would enable the identification
and location of documents in their possession
(cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192
[Bazelon, J.] [plausible claim of
nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3),
may be presented where agency's indexing
system was such that 'the requested documents
could not be identified by retracing a path
already trodden. It would have required a
wholly new enterprise, potentially requiring a
search of every file in the possession of the
agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as
suggested by the Court of Appeals, may be dependent upon the terms of a
request, as well as the nature of an agency's filing or record-keeping system.
In Konigsberg, it appears that the agency was able to locate the records on the
basis of an inmate's name and identification number.

While I am unfamiliar with the record keeping systems of the
Department, to extent that the records sought can be located with reasonable
effort, I believe that the request would have met the requirement of reasonably
describing the records. In Ruberti, Girvin & Ferlazzo v. Division of State
Police [218 AD2d 494, 641 NYS2d 411 (1996)], one element of the decision
pertained to a request for a certain group of personnel records, and the agency
argued that it was not required to search its files those requested "because
such records do not exist in a 'central file' and, further, that FOIL does not
require that it review every litigation or personnel file in search of such
information" (id., 415). Nevertheless, citing Konigsberg, the court determined
that:

"Although the record before this court
contains conflicting proof regarding the nature
of the files actually maintained by respondent
in this regard, an agency seeking to avoid
disclosure cannot, as respondent essentially
has done here, evade the broad disclosure
provisions FOIL by merely asserting that
compliance could potentially require the
review of hundreds of records" (id.).

If the Department can locate the records sought with a reasonable effort
analogous to that described above, i.e., by reviewing perhaps hundreds of
records, it apparently would be obliged to do so. As indicated in Konigsberg,
only if it can be established that the Department maintains its records in a
manner that renders its staff unable to locate and identify the records would
the request have failed to meet the standard of reasonably describing the
records.

Assuming that the request does reasonably describe the records, the
remaining issue involves rights of access.

Item 2 of your request involves letters of disqualification sent to
applicants for the position of correction officer. In this regard, §89(7) of the
Freedom of Information Law states in part that nothing in that statute shall
require the disclosure of "the name or home address ...of an applicant for
appointment to public employment." Therefore, if the letters can be found,
the names and residence addresses of the applicants may be deleted.

With respect to items 3 and 4, again, assuming that the records can be
located, a significant element in an analysis of rights of access involves the
application of §50-a of the Civil Rights Law, which pertains to personnel
records of police and correction officers, as well as professional firefighters.
If §50-a does not apply, I believe that the records would be accessible. If it
does apply and you are not interested in the names of the officers who are the
subjects of the records, the remainder, in my view, would be available. If §50-a applies and you are interested in obtaining the names, I believe that they
would clearly be available with regard to those who are no longer correction
officers; with regard to those who remain correction officers, the extent to
which the Department must disclose is questionable.

By way of background, 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, three of the grounds for denial, each of which was referenced in
response to your appeal, is relevant in consideration of rights of access to the
records in question.

The first ground for denial, §87(2)(a), pertains to records that "are
specifically exempted from disclosure by state or federal statute." One such
statute is §50-a of the Civil Rights Law. In brief, that statute provides that
personnel records of police and correction officers that are used to evaluate
performance toward continued employment or promotion are confidential.
The Court of Appeals, in reviewing the legislative history leading to its
enactment, has held that §50-a is not a statute that exempts records from
disclosure when a request is made under the Freedom of Information Law in
a context unrelated to litigation. More specifically, in a case brought by a
newspaper, it was found that:

"Given this history, the Appellate Division
correctly determined that the legislative intent
underlying the enactment of Civil Rights Law
section 50-a was narrowly specific, 'to prevent
time-consuming and perhaps vexatious
investigation into irrelevant collateral matters
in the context of a civil or criminal action'
(Matter of Capital Newspapers Div. of Hearst
Corp. v. Burns, 109 AD 2d 92, 96). In view
of the FOIL's presumption of access, our
practice of construing FOIL exemptions
narrowly, and this legislative history, section
50-a should not be construed to exempt
intervenor's 'Lost Time Record' from
disclosure by the Police Department in a non-litigation context under Public Officers section
87(2)(a)" [Capital Newspapers v. Burns, 67
NY 2d 562, 569 (1986)].

It was also found that the exemption from disclosure conferred by §50-a of
the Civil Rights Law "was designed to limit access to said personnel records
by criminal defense counsel, who used the contents of the records, including
unsubstantiated and irrelevant complaints against officers, to embarrass
officers during cross-examination" (id. at 568).

In another decision, which dealt with unsubstantiated complaints
against correction officers, the Court of Appeals held that the purpose of §50-a "was to prevent the release of sensitive personnel records that could be used
in litigation for purposes of harassing or embarrassing correction officers"
[Prisoners' Legal Services v. NYS Department of Correctional Services, 73
NY 2d 26, 538 NYS 2d 190, 191 (1988)].

If the subjects of the records are no longer correction officers, I do not
believe that §50-a would be applicable. In short, the rationale for
confidentiality accorded by that provision would no longer be present.

Also relevant 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 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 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, it is emphasized 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]. Three of the decisions cited above, Powhida, Farrell and
Scaccia involved police officers, and in each case, the names of the officers
were determined to be public.

With specific respect to the settlements reached following the initiation
of disciplinary proceedings, 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).

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 states 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.
The facts of the matter are undisputed, admissions have been made, and
disciplinary action has been or will be taken.

It is emphasized 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 those portions
of records indicating the names of the officers and the nature of disciplinary
action or sanction imposed against them must be disclosed.

Lastly, in good faith, I point out that a contrary determination was
reached in Daily Gazette v. City of Schenectady (Supreme Court,
Schenectady County, August 21, 1997). In that case, it was held that the
identities of some eighteen police officers reprimanded following an "egg
throwing incident" could be withheld. Although the court rejected
contentions regarding the ability to withhold the information sought under
§87(2)(b) and (g) of the Freedom of Information Law, it was found that §50-a
of the Civil Rights Law provides "an almost impenetrable cloak of secrecy"
and bars disclosure.

I hope that I have been of assistance.

Sincerely,


Robert J. Freeman
Executive Director

RJF:tt

cc: Anthony J. Annucci
Mark Shepard