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December 7, 1998

 

Mr. Kurt T. Minersagen
Field Representative
NYS Public Employees Federation
P.O. Box 12414
Albany, NY 12212-2414

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. Minersagen:

I have received your letters of November 4. In one, you asked that this office
intervene on behalf of a representative of the Public Employees Federation (PEF) employed
by the Division of Housing and Community Renewal (DHCR) relative to her unanswered
requests for contracts for consulting services in certain areas. In the other, you appealed a
denial of access to personnel reports identifying employees by name, title, status, grade,
appointment type, location, encumbrances and bargaining unit." DHCR responded by
indicating that information accessible under the Freedom of Information Law would be made
available only with respect to PEF employees.

In this regard, I offer the following comments.

First, it appears that you misunderstand the role of the Committee on Open
Government. The Committee is authorized to provide advice concerning the Freedom of
Information Law; it is not empowered to compel an agency to grant or deny access to records
or determine appeals. As such, the remarks herein should be considered advisory in nature.

Second, with respect to the first letter, the Freedom of Information Law provides
direction concerning the time and manner in which agencies must respond to requests.
Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within
five business days of the receipt of a written request for a
record reasonably described, shall make such record available
to the person requesting it, deny such request in writing or
furnish a written acknowledgement of the receipt of such
request and a statement of the approximate date when such
request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given
within five business days, or if an agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my opinion, be considered
to have been constructively denied. In such a circumstance, I believe that the denial may be
appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision
states in relevant part that:

"...any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive, or
governing body, who shall within ten business days of the
receipt of such appeal fully explain in writing to the person
requesting the record the reasons for further denial, or provide
access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not
rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of
the Freedom of Information Law, the appellant has exhausted his or her administrative
remedies and may initiate a challenge to a constructive denial of access under Article 78 of
the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774
(1982)].

Third, assuming that the contracts for consulting services can be located, I believe that
they 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. In my view, none of the grounds for denial
would be pertinent.

A potential issue involves the requirement imposed by §89(3) of the Freedom of
Information Law that an applicant must "reasonably describe" the records sought. In
considering that standard, the State's highest court has found that requested records need not
be "specifically designated", that to meet the standard, the terms of a request must be
adequate to enable the agency to locate the records, and that an agency must "establish that
'the descriptions were insufficient for purposes of locating and identifying the documents
sought'...before denying a FOIL request for reasons of overbreadth" [Konigsberg v. Coughlin,
68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the
request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to
the nature - or even the existence - of their indexing system:
whether the Department's files were indexed in a manner that
would enable the identification and location of documents in
their possession (cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192 [Bazelon, J.]
[plausible claim of nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3), may be presented
where agency's indexing system was such that 'the requested
documents could not be identified by retracing a path already
trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of
the agency']" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the
Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an
agency's filing or record-keeping systems. In Konigsberg, it appears that the agency was able
to locate the records on the basis of an inmate's name and identification number.

In the context of your request, I am unaware of the means by which DHCR maintains
contracts for consulting services. If the contracts can be located based on the terms of the
request, I believe that the request would meet the requirement of reasonably describing the
records.

With regard to the second letter, I note that it has been held that records accessible
under the Freedom of Information law must be made equally available to any person,
irrespective of one's status or interest [see M. Farbman & Sons v. New York City Health and
Hosps. Corp., 62 NY 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD
2d 673, 378 NYS 2d 165 (1976)]. Therefore, even though the request was made by a
representative of PEF, her request in that capacity would not limit rights of access conferred
by the Freedom of Information Law.

As I understand the requests, with one exception, the items sought should be
disclosed. Pertinent to the matter is §87(2)(b), which states that an agency may withhold
records to the extent that disclosure constitute "an unwarranted invasion of personal privacy"
pursuant to §87(2)(b) of the Freedom of Information Law. Although subjective judgments
must often of necessity be made when questions concerning privacy arise, 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); 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].

The last decision cited, Wool, dealt with a request for a record that identified public
employees by name and salary, and the same record included a column indicating which
among the employees had deductions made for payment of union dues. The court held that
salary information is clearly available, but that the column involving the payment of union
dues could be withheld, stating that "[m]embership in the CSEA has no relevance to an
employee's on the job performance or the functioning of his or her employer." In Wool,
certain employees had the option of joining a union or not doing so. Consequently, it was
held that the portion of the record indicating the payment or non-payment of union
membership dues constituted an unwarranted invasion of personal privacy.

Again, it appears that the information sought must be disclosed, irrespective of the
reason for the request, with the exception of the information relating to a bargaining unit.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Patrice Huss
Brian Lawlor
Gerald Burke