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October 19, 1998

 

Ms. Ann Nathan
168 Post Office Road
South Salem, NY 10590

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. Nathan:

I have received your letter of October 12, as well as the correspondence relating to
it. You have sought an opinion concerning your right to obtain the resumes and applications
of applicants for the position of principal in the Katonah-Lewisboro School District.

In this regard, I offer the following comments.

First, §89(7) of the Freedom of Information Law states that an agency, such as a
school district, is not required to disclose the name of an applicant for appointment to public
employment. Therefore, although the District could choose disclose the identities of the
applicants who were not hired, it would not be obliged to do so.

Second, notwithstanding the foregoing, I believe that many aspects of the resumes or
applications submitted regarding those who were not hired, as well as a variety of details
regarding the person who was hired, must be disclosed.

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. As suggested in the correspondence, one of the grounds for denial,
§87(2)(b), states that an agency may withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy."

In a case in which an individual wanted to compare his qualifications with the
qualifications of others, it was determined that resumes of those others must be disclosed,
following the deletion of personally identifying details [see Harris v. City of University of
New York, Baruch College, 114 AD 2d 805 (1985)].

With respect to the records pertaining to the incumbent of the position, I note that the
judicial interpretation of the Freedom of Information Law indicates 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 note 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 [see Ruberti, Girvin & Ferlazzo v. NYS Division of State Police, 641 NYS 2d 411,
218 AD 2d 494 (1996)]. Additionally, 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 those portions of resumes,
including information detailing one's prior 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)]."

In short, it is likely that some aspects of the resume of the incumbent must be
disclosed, while others could be withheld to protect personal privacy.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Karen McCarthy, Ph.D.