NY.gov Portal State Agency Listing

 

July 21, 1998

 

Carol Quinn, Esq.
P.O. Box 825
Clifton Park, NY 12065

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. Quinn:

I have received your letter of July 9 in which you sought an advisory opinion concerning the
propriety of "repeated denials of FOIL requests for the curriculum vitae or resumes of certain
professors at the State University of New York at New Paltz." You expressed an understanding that
personal information might justifiably be withheld, but you also wrote that you believe that you
should have the ability to obtain:

"- work histories;

- academic degrees and schools attended;

- a list of professional publications;

- a list of memberships in professional organizations (we have no
interest in party affiliation or any nonprofessional affiliations);

- a list of professional exhibitions, speeches, and presentations; and

- a list of references."

In this regard, I offer the following comments.

First, as you are aware, the Freedom of Information Law pertains to existing records. Section
89(3) provides in part that an agency is not require to create a record in response to a request.
Therefore, insofar as the "lists" in which you are interested do not exist, agency staff would not be
required to prepare new records on your behalf.

Second, with respect to the contents of existing records, i.e., curriculum vitae or resumes, 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. Relevant to the matter 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].

I point out that §89(2)(b) of the Freedom of Information Law contains a series of examples
of unwarranted invasions of personal privacy, the first of which pertains to "disclosure of
employment, medical or credit histories or personal references of applicants for employment." Based
on that provision, those portions of the records sought that include "references" may in my view be
withheld. Similarly, portions of the records that pertain to individuals' private employment outside
of government may be withheld. However, 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 portions of resumes consisting of 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.

"The Opinion further stated that:

"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)]."

Lastly, if indeed the resumes include lists of memberships in professional organizations
associated with the performance of one's official duties or of professional exhibitions, speeches and
the like, those items would not in my view be "personal" or intimate in nature; rather, they would
relate to activities known to great numbers of people. Consequently, if they appear in the records,
I believe that they would be available.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Martin T. Reid
Karen L. Summerlin
Carolyn Pasley