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March 20, 1998

Ms. Doris Ulman
Attorney At Law
16 Doe Drive
Suffern, NY 10901

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 Ms. Ulman:

I have received your letter of March 4. In your capacity as attorney
for the South Nyack/Grand View Joint Police Board, you have sought advice
concerning a request for copies of personnel records pertaining to a former
police officer.

The records sought include:

"1. Application for employment:
2. Certificates or diplomas for any police
3. Civil Service test results;
4. Commendations or awards;
5. Any letters of appreciation or praise from
citizens, fellow officers, public officials,
6. Any formal or informal complaints made
by civilians;
7. Any formal or informal departmental
8. Records and documents relating to
administrative leave;
9. Records and document relating to

You have asked whether the records sought are "exempt from public
disclosure pursuant to Public Officers Law Section 89(2)(b)(i) and/or Civil
Rights Law 50-a and related cases." You added that the "subject police
officer has not consented to disclosure."

From my perspective, some aspects of the records must be disclosed;
others could be withheld. In this regard, I offer the following comments.

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 are 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 subject of the records is no longer a police officer, I do not
believe that §50-a would be applicable. In short, the rationale for
confidentiality accorded by that provision as expressed in its legislative history
and decisions rendered by the Court of Appeals would no longer be present.

The other provision that you cited, §89(2)(b)(i), states that an agency
may withhold "employment, medical or credit histories or personal references
of applicants for employment" on the ground that disclosure would constitute
"an unwarranted invasion of personal privacy." That is one among many
conceivable examples of situations in which disclosure would result in an
unwarranted invasion of personal privacy pursuant to §87(2)(b) of the
Freedom of Information Law. Those provisions may be pertinent as a basis
for withholding some elements of the records, and not only those that pertain
to the former officer.

With respect to access to an application for employment, if, for
example, an individual must have certain types of experience, educational
accomplishments, licenses 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. In a related context, when a civil service examination is given, those
who pass are identified in "eligible lists" which have long been available to the
public. By reviewing an eligible list, the public can determine whether persons
employed by government have passed the appropriate examinations and met
whatever qualifications that might serve as conditions precedent to
employment. In my view, to the extent that a resumé contains information
pertaining to the requirements that must have been met to hold the position,
it should be disclosed, for I believe that disclosure of those aspects of a
resumé 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.

Although some aspects of one's employment history may be withheld,
the fact of a person's public employment is a matter of public record, for
records identifying public employees, their titles and salaries must be prepared
and made available under the Freedom of Information Law [see §87(3)(b)].
However, reference to former private employers could in my opinion be
withheld. Further, information included in a document that is irrelevant to
criteria required for holding the position, such as grade point average, class
rank, home address, social security number and the like, could in my opinion
be deleted prior to disclosure of the remainder of the record to protect against
an unwarranted invasion of personal privacy.

I note that a recent judicial decision cited and relied upon the
preceding commentary contained in an opinion rendered by this office
concerning access to applications for employment (Kwasnik v. City of New
York, Supreme Court New York County, September 26, 1997), and that 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 [Ruberti, Girvin & Ferlazzo v. NYS Division of State Police, 218
AD2d 494 (1996)].

On the basis of those decisions, I believe that in addition to portions
of an application for employment, certificates or diplomas for police training
would be available. Similarly, civil service test results indicating that a
candidate passed exams would be public, for the results are typically included
in eligible lists that are public (see Rules of the Department of Civil Service,
§71.3). Reference to a failing grade may in my view be withheld as an
unwarranted invasion of personal privacy.

Privacy considerations also may arise in the context of
communications sent by members of the public, such as complaints. It has
consistently been advised that identifying details concerning a complainant
may be withheld to protect that person's privacy.

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.

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 v. Village Board of Trustees,
372, NYS 2d 905 (1975); Geneva Printing Co. And Donald C. Hadley v.
Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Scaccia v. NYS
Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); and
Sinicropi v. County of Nassau, 76 AD 2d 838 (1980)]. Three of the decisions
cited above, Powhida, Farrell and Scaccia involved police officers, and in each
case, the names of the officers and the penalties imposed were determined to
be public.

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.
If a complaint is internal or departmental, such a record would also constitute
intra-agency material that could likely be withheld.

It is assumed that a commendation or award would represent a final
agency determination that is relevant to the performance of an employee's
duties. Therefore, as in the case of a final determination indicating a finding
of misconduct, I believe that it, too, would be available.

With regard to records relating to administrative leave or retirement,
without additional information concerning the nature or content of such
records, I cannot offer specific guidance. However, it is likely that all such
records would consist of intra-agency materials. Insofar as they include
statistical or factual information, I believe that they would be available, unless
a different ground for denial, such as §87(2)(b), could properly be asserted
[see Gould v. New York City Police Department, 89 NY2d 267, 276-277
(1996)]. With regard to leave records, I note that a decision cited earlier,
Capital Newspapers v. Burns, supra, required the disclosure of records
indicating the days and dates of sick leave claimed by a particular police
officer. As such, as a general matter, leave and attendance records would be
likely be available in great measure. Similarly, records reflective of public
employees' salaries or other payments, such as overtime, would clearly be
available based on the principles cited earlier [see also, §87(3)(b)].

Lastly, assuming that §50-a of the Civil Rights Law is not applicable,
which I believe to be so, the absence of consent given by the subject of the
records is, in my view, irrelevant. Moreover, it is emphasized that the
Freedom of Information Law is permissive. As stated by the Court of
Appeals in Capital Newspapers, even though an agency may withhold records
or portions of records in accordance with the grounds for denial, it is not
obliged to do so and may choose to disclose (id., 567).

I hope that I have been of assistance. Should any further questions
arise, please feel free to contact me.


Robert J. Freeman
Executive Director