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May 28, 1998

 

Mr. James M. Odato
Times-Union
Capitol Bureau
Box 7340
State Capitol
Albany, NY 12224

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,
unless otherwise indicated.

Dear Mr. Odato:

As you are aware, I have received your letter of May 6 in which you sought my views
concerning a denial of a request directed to the New York State Higher Education Services
Corporation ("the Corporation").

In a request made on February 6, you sought information from the Corporation "that lists the
names of public employees who have defaulted on their student loans", as well as "the names of state
employees whose names are garnished because they have defaulted on student loans." That request
was denied, and on March 2, you asked that the matter be reconsidered. At that time, you requested
a "list of state employees who fail to pay their loans because the state has the authority to garnish
their paychecks." That request was denied by the Corporation's Appeals Officer, who cited both the
Freedom of Information Law and the Personal Privacy Protection Law, stating that "the
information...is personal and credit-related in nature, and as such meets the statutory standard which
defines an 'unwarranted invasion of personal privacy' in section 89(2) of the Public Officers Law."

From my perspective, it is likely that the request was properly denied. While it is possible that
a court might find that a list of all defaulters is accessible, it is doubtful in my view that a list of state
employees who have defaulted would be determined to be public. In this regard, I offer the following
comments.

In order to obtain background information concerning your request, I have spoken with
representatives of the Corporation. One of the points offered is that the term "default" must be
construed by the Corporation pursuant to federal laws and guidelines. As I understand their remarks,
a default might include any failure to repay the appropriate portion of a loan on time, even if a
payment is made immediately after a deadline. It is also my understanding that the list of "defaulters"
may include people who appear to be in default but who may be exempt from repayment due to a
certain status, such as a handicapping condition. and that federal law contains so-called "forgiveness"
provisions that authorize individuals to repay loans despite apparent default. The data maintained by
the Corporation does not differentiate among those categories of persons, nor does it distinguish
between those in default now and those who repaid. As such, it is the contention of the Corporation
that disclosure of the identity of defaulters generally would constitute "an unwarranted invasion of
personal privacy."

In my view, if a person has entered into an agreement with a governmental entity but fails to
uphold the agreement and is found to be in violation, a record indicating such violation typically must
be disclosed. Although not fully analogous to the instant situation, the identities of those who have
failed to comply with law, for example, are generally known to the public under the Freedom of
Information Law. If a person has engaged in parking violations and owes money to a municipality,
those persons' names are public; if an owner of real property has failed to pay his or her property
taxes on time or at all, records reflective of such failure would be public. With the exception of those
categorized as defaulters who in some way fall within an exception indicating that they are not truly
in default, it is my view that the identities of those in default would be accessible.

As suggested in the responses to your requests, two statutes are pertinent to an analysis of
the matter, the Freedom of Information Law and the Personal Privacy Protection Law.

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.

The Personal Privacy Protection Law deals in part with the disclosure of records or personal
information by state agencies concerning data subjects. A "data subject" is "any natural person about
whom personal information has been collected by an agency" [Personal Privacy Protection Law,
§92(3)]. "Personal information" is defined to mean "any information concerning a data subject which,
because of name, number, symbol, mark or other identifier, can be used to identify that data subject"
[§92(7)]. For purposes of Personal Privacy Protection Law, the term "record" is defined to mean
"any item, collection or grouping of personal information about a data subject which is maintained
and is retrievable by use of the name or other identifier of the data subject" [§92(9)].

With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No
agency may disclose any record or personal information", except in conjunction with a series of
exceptions that follow. One of those exceptions involves when a record is "subject to article six of
this chapter [the Freedom of Information Law], unless disclosure of such information would
constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two
of section eighty-nine of this chapter". It is noted, too, that §89(2-a) of the Freedom of Information
Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted
invasion of personal privacy as defined in subdivision two of this section if such disclosure is
prohibited under section ninety-six of this chapter". Therefore, if a state agency cannot disclose
records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the
Freedom of Information Law.

I point out that §89(2)(b) provides that "an unwarranted invasion of personal privacy"
includes, but shall not be limited to situations that are described by means of five examples of
unwarranted invasions of personal privacy. Two of the examples of unwarranted invasions of
personal privacy listed in §89(2)(b) may be relevant to the situation. Specifically, those two
exceptions state that an unwarranted invasion of personal privacy includes:

"i. disclosure of employment, medical or credit
histories or personal references of applicants for
employment...

iv. disclosure of information of a personal nature
when disclosure would result in economic or personal
hardship to the subject party and such information is
not relevant to the work of the agency requesting or
maintaining it..."

With respect to §89(2)(b)(i), the question in my view is whether the information sought could be
equated with a "credit history." If a list identifying defaulters could be construed as a record
reflective of credit histories, it would appear that the records sought could justifiably be withheld.
On the other hand, a relationship between a person who obtains a loan from the Corporation involves
a single event relating to credit. In my opinion, a relationship based upon one loan could not likely
be viewed as "history" of a person's credit worthiness.

With regard to §89(2)(b)(iv), the information in my view is of a personal nature, disclosure
might result in personal or economic hardship to the individuals in default or identified on the default
list, but the information is relevant to the work of the Corporation. In construing §89(2)(b)(iv), it
has been found that its language is conjunctive. As stated by the Court of Appeals in Gannett Co.
Inc. v. County of Monroe, which construed the analogous provision of the original Freedom of
Information Law, "the exception...is available only if there is both proof of such hardships and it is
established that the records sought are not relevant or essential to the ordinary work of the agency
or municipality. The latter branch of this conjunctive requirement cannot be met in this instance"
[emphasis added by court, 45 NY 2d 954, 955 (1978)]. Similarly, in a decision that involved
§89(2)(b)(iv), the court cited the Gannett decision and found that the application of that provision
required that the "test" of finding that disclosure would result in personal or economic hardship and
that the information was not relevant to the work of the agency could not be met. Therefore, it was
held that the records were required to be made available [Flatbush Development Corp. v. Insurance
Department, Sup. Ct., New York County, NYLJ, October 7, 1983].

If the records sought could not be characterized as containing credit histories, and if a court
employed the test described in relation to §89(2)(b)(iv) of the Freedom of Information Law, it is
likely in my view that a default list would be available, for the records would be relevant to the work
of the Corporation, and disclosure would, for reasons discussed earlier, constitute a permissible rather
than an unwarranted invasion of personal privacy.

It is possible, too, that a court might not look to the examples of unwarranted invasions of
personal privacy listed in §89(2)(b) of the Freedom of Information Law. As indicated earlier, the
cited provision states that an unwarranted invasion of personal privacy includes but "shall not be
limited to" those examples. Consequently, while a court may seek guidance from the examples listed
in §89(2)(b), I do not believe that it would be bound by those five specific references to unwarranted
invasions of personal privacy.

Lastly, assuming that the Corporation can generate a list that identifies those in default who
are also state employees, I believe that such a list could be withheld. As a state agency, the
Corporation has a relationship with other state agencies that enable it to use their services and data
in order to carry out their official duties. From my perspective, the ability to earmark certain
defaulters as state employees is essentially fortuitous, incidental and based solely on the fact that state
agencies have the opportunity in certain circumstances to share personal information.

In terms of disclosure, 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 advised in other situations that information about state employees indicating how
their money may be spent, allocated or deducted is irrelevant to the performance of their official
duties and, therefore, may be withheld on the ground that disclosure would result in an unwarranted
invasion of personal privacy. If a state employee has money deducted from his or her paycheck for
alimony payments, contributions to charity, or direct deposit into a savings or investment program,
those aspects of one's life are unrelated to the performance of that person's official duties. Similarly,
the fact that a person may be in default on a student loan but happens to be a state employee is in my
view also irrelevant to the performance of his or her official duties.

For the reasons expressed above, in my opinion, a list or record that identifies state employees
who may be defaulters on loans could justifiably be withheld. If you would like to discuss the matter
further, please feel free to contact me.

I hope that the foregoing serves to enhance your understanding of the matter and that I have
been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Julio Vidal
Pierre Alric
Jean Ghezzi