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August 4, 1998

Ms. Carol Chur
League of Women Voters
of the Greater Buffalo Area
9625 The Maples
Clarence, NY 13031

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. Chur:

I have received your letter of July 25. On behalf of the Clarence Unit of the League
of Women Voters of the Greater Buffalo Area, you raised a variety of questions relating to
the Town of Clarence Code of Ethics.

It is emphasized that the function of the Committee on Open Government involves
providing advice and guidance concerning the Freedom of Information and Open Meetings
Laws, and my comments will be restricted to those subjects. Issues dealing solely with an
ethics code are beyond the jurisdiction or expertise of this office.

Your first series of questions is as follows:

"Does the accused (town employee) have the legal right to
know the name of his/her accuser concerning a code of ethics
violation? Please discuss who is the ‘accuser' -- the person
submitting the original complaint, the Ethics Board, or the
Town Board. At what point in the process (initial complaint,
investigation, hearing, or town board decision on punishment)
is an employee considered accused of a code of ethics
violation?"

In this regard, as you are aware, 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. When an allegation or complaint is made to an agency,
§87(2)(b) of the Freedom of Information Law is often relevant. That provision permits an
agency to withhold records to the extent that disclosure would constitute "an unwarranted
invasion of personal privacy."

With respect to such records, it has generally been advised that those portions of the
complaint which identify complainants, or to use your word, "accusers," may be deleted on
the ground that disclosure would result in an unwarranted invasion of personal privacy. I
point out that §89(2)(b) states that an "agency may delete identifying details when it makes
records available." Further, the same provision contains five examples of unwarranted
invasions of personal privacy, the last two of which include:

"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; or

v. disclosure of information of a personal nature reported in
confidence to an agency and not relevant to the ordinary work
of such agency."

In my view, what is relevant to the work of the agency is the substance of the complaint, i.e.,
whether or not the complaint has merit. The identity of a member of the person who made
the complaint is often irrelevant to the work of the agency, and in such circumstances, I
believe that identifying details may be deleted.

I cannot answer as to when a person is considered "accused" of a violation, for I
believe that would be dependent on the procedural aspects of a code or local law.

Second, you asked whether a code of ethics may "state that the person submitting a
complaint would have the choice of whether or not their name would be revealed to the
person accused of an ethics violation, or to the public upon submittal of the complaint" or any
ensuing stage of a procedure leading to a determination.

In general, whether the subject of a record prefers to authorize or preclude disclosure
is, in my opinion, irrelevant in terms of an analysis of rights conferred by the Freedom of
Information Law. In a case in which a law enforcement agency permitted persons reporting
incidents to indicate on a form their preference concerning the agency's disclosure of their
records to the news media, the Appellate Division found that, as a matter of law, the agency
could not withhold a record based upon the "preference" of the person who reported the
offense. Specifically, in Johnson Newspaper Corporation v. Call, Genesee County Sheriff,
115 AD 2d 335 (1985), it was found that:

"There is no question that the 'releasable copies' of reports of
offenses prepared and maintained by the Genesee County
Sheriff's office on the forms currently in use are governmental
records under the provisions of the Freedom of Information
Law (Public Officers Law art 6) subject, however, to the
provisions establishing exemptions (see, Public Officers Law
section 87[2]). We reject the contrary contention of
respondents and declare that disclosure of a 'releasable copy'
of an offense report may not be denied, as a matter of law,
pursuant to Public Officers Law section 87(2)(b) as
constituting an 'unwarranted invasion of personal privacy'
solely because the person reporting the offense initials a box
on the form indicating his preference that 'the incident not be
released to the media, except for police investigative purposes
or following arrest'."

Moreover, although the issue did not involve law enforcement, the Court of Appeals has held
that a request for or a promise of confidentiality is all but meaningless; unless one or more of
the grounds for denial appearing in the Freedom of Information Law may appropriately be
asserted, the record sought must be made available [see Washington Post v. New York State
Insurance Department, 61 NY 2d 557, 567 (1984)]. This is not to suggest that records or
portions of records might not justifiably be withheld, but rather that a claim or promise of
confidentiality in my opinion is irrelevant to an analysis of rights of access to records.

Third, for reasons discussed earlier, I believe that identifying details relating to
complainants may generally be withheld to protect their privacy. The same would be so in
my view with respect to witnesses and others when the rationale offered earlier is applicable.

Lastly, you asked whether the Town Board "[c]an...reveal, in the minutes and to the
public, the specific recommendations of the Ethics Board regarding a violation of the Ethics
Code, as well as the Town Board's actions regarding the issue." In my view, the Board "can"
reveal any of the records under consideration, for the Freedom of Information Law is
permissive; while agencies "may" withhold records to the extent authorized by the grounds
for denial appearing in §87(2), they are not required to do so [see Capital Newspapers v.
Burns, 67 NY2d 562 (1986)]. Nevertheless, I believe that it would have the ability to deny
access in accordance with the ensuing comments.

As indicated earlier, §87(2)(b) authorizes an agency to withhold records when
disclosure would result in an unwarranted invasion of personal privacy. Although the
standard concerning privacy is flexible and may be subject to conflicting interpretations, the
courts have provided substantial direction regarding the privacy of public employees. It is
clear that public employees enjoy a lesser degree of privacy than others, for it has been found
in various contexts that public employees are required to be more accountable than others.
With regard to records pertaining to public employees, the courts have found that, as a
general rule, records that are relevant to the performance of a public employee's 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].

Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing,
Scaccia and Powhida, dealt with situations in which final determinations indicating the
imposition of some sort of disciplinary action pertaining to particular public employees were
found to be available. However, when allegations or charges of misconduct have not yet been
determined or did not result in disciplinary action, 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)]. Further, to the extent that charges are dismissed or allegations are found to
be without merit, I believe that they may be withheld.

The other provision of relevance, §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. Records prepared in conjunction with an inquiry or
investigation would in my view constitute intra-agency materials. Insofar as they consist of
opinions, advice, conjecture, recommendations and the like, I believe that they could be
withheld. Factual information would in my view be available, except to the extent that
disclosure would result in an unwarranted invasion of personal privacy.

In sum, the only record that must be disclosed, in my opinion, would be a final
determination indicating that an officer or employee has been found to have engaged in
misconduct. While the Town Board could choose to disclose other records relating to a
possible ethics code violation, for reasons described above, I do not believe that it would be
required to do so.

 

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Town Board