March 18, 1998
Mr. Joseph W. Sallustio, Jr.
1212 N. James Street
Rome, NY 13440
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. Sallustio:
I have received your letter of March 2, as well as the materials
attached to it. You have questioned the propriety of a denial of your request
for records maintained by the Rome City School District.
You sought "criteria used to determine qualified candidates and
criteria method used to rank qualified candidates" for a particular position.
In response, you were informed that:
"...access to criteria and questions used during
the interview process must be denied under
Section 87(2)(h) of the Freedom of
Information Law on the grounds that they are
equivalent of examination questions and/or
answers which will be used again by the
District and are, therefore, not the final
administration of such questions."
It is your view that the basis for the denial is in error.
From my perspective, insofar as the records sought exist, they must
be disclosed. In this regard, I offer the following comments.
First, 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, the provision cited in the response is, in my view,
inapplicable. Section 87(2)(h) permits an agency to withhold records that:
"are examination questions or answers which
are requested prior to the final administration
of such questions..."
The purpose of that provision is obvious. If questions used in an examination,
whether it be a civil service exam or an examination given to students, are
disclosed before they are finally given, the examination process and its
integrity would be compromised. In short, if examination questions will be
used in the future, the Law permits an agency to deny access to both the
questions and the answers.
Consideration of the criteria that must be met in order to hold a
position in my opinion is quite different from the administration of the kind of
examinations described earlier. If a request involved a list of questions used
in interviewing candidates for a position, I would likely agree that an agency
could deny access. Again, disclosure now of a question to be used in an
interview at some future date would enable the recipient of such a record to
gain an unfair advantage over prior interviewees who could not obtain the
question. Criteria, however, are standards that must be met in order to hold
a position. The standards represent the policy of an agency in terms of the
minimum qualifications that must be attained to hold a position or carry out
certain duties. For that reason, and to provide the public with a guarantee of
accountability and a means of ensuring that an individual hired is qualified, the
criteria in my view must be disclosed.
Also relevant to an analysis of rights of access is §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
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.
Again, criteria established by an agency regarding the attributes necessary to
hold a position would represent the agency's policy, essentially its rules, and,
therefore, would be available under §87(2)(g)(iii).
Also potentially relevant is §87(2)(b), which states that an agency may
withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy."
Based on the judicial interpretation of the Freedom of Information
Law, 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 those
individuals are required to be more accountable than others. The courts have
found that, as a general rule, records that are relevant to the performance of
the official duties of a public officer or employee 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 items relating to public officers or
employees are irrelevant to the performance of their 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, dealing with membership in a union; Minerva v. Village of
Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a
check payable to a municipal attorney that could indicate how that person
spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning
disclosure of social security numbers].
It has been held that disclosure of a public employee's educational
background would not constitute an unwarranted invasion of personal privacy
and must be disclosed [see Ruberti, Girvin & Ferlazzo v. NYS Division of
State Police, 641 NYS 2d 411, 218 AD 2d 494 (1996)]. Additionally, in a
recent judicial decision, Kwasnik v. City of New York (Supreme Court, New
York County, September 26, 1997), the court quoted from and relied upon
an opinion rendered by this office and held that those portions of resumes,
including information detailing one's public employment must be disclosed.
The Committee's opinion stated that:
"If, for example, an individual must have
certain types of experience, educational
accomplishments or certifications as a
condition precedent to serving in [a] particular
position, those aspects of a resume or
application would in my view be relevant to
the performance of the official duties of not
only the individual to whom the record
pertains, but also the appointing agency or
officers ... to the extent that records sought
contain information pertaining to the
requirements that must have been met to hold
the position, they should be disclosed, for I
believe that disclosure of those aspects of
documents would result in a permissible rather
than an unwarranted invasion [of] personal
privacy. Disclosure represents the only means
by which the public can be aware of whether
the incumbent of the position has met the
requisite criteria for serving in that position."
In short, for the reasons expressed above, it appears that the records sought
should be disclosed.
In an effort to enhance compliance with and understanding of the
Freedom of Information Law, copies of this response will be forwarded to
I hope that I have been of assistance.
Robert J. Freeman
cc: Valerie Kelsey