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June 12, 1998

Mr. James Leman
45 Lester Drive
Tappan, NY 10983

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. Leman:

I have received your letter of May 19 in which you sought my views concerning a
request directed to Rockland County relating to County employees who are
"non-citizens."

As you are aware, it is my view that portions of employment applications indicating
whether employees or prospective employees are citizens may be withheld. In this
regard, I offer the following comments.

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
º87(2)(a) through (i) of the Law. Pertinent is º87(2)(b), which authorizes agencies to
withhold records insofar as 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 thatpublic
officers and employees are required to be more accountable than others. Further, 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, Sup. Ct.,
Suffolk Cty., NYLJ, Oct. 30, 1980); 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 regarding membership in a union; also Seelig v. Sielaff, 201 AD2d 298
(1994) regarding social security numbers].

From my perspective, one's citizenship, like race, gender, social security number or
date of birth, is largely irrelevant to the performance of one's governmental duties.
Moreover, as we discussed, º71.1 of the regulations promulgated by the Department of
Civil Service restricts the disclosure of information relating to one's citizenship and states
that "Before a candidate's application for examination is exhibited to the appointing
officer or his representative, all reference therein to the candidate's national origin or to
the basis of his citizenship shall be concealed." In short, I believe that a court would
determine that disclosure would result in an unwarranted invasion of personal privacy.

In addition, at the end of your letter, you indicated that you would like answers to
questions, such as the number of "non-citizen" County employees and whether the County
checked the documentation needed to hire aliens. In this regard, I note that the Freedom
of Information Law pertains to existing records, and that º89(3) of the Law provides in
part that an agency is not required to create new records in response to a request.
Consequently, if there is no figure or tabulation indicating the number of aliens employed
by the County, the County would not be required to review its records to prepare a
compilation or total on your behalf. Similarly, agency staff is not required by the Freedom
of Information Law to provide information in response to questions. While they may do
so, again, that statute pertains to existing records.

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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