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January 7, 1999

 

Mr. Henry F. Sobota
Ferrara, Fiorenza, Larrison,
Barrett & Reitz, P.C.
5010 Campuswood Drive
East Syracuse, NY 13057

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. Sobota:

As you are aware, I have received your letter of December 15. You have sought an advisory
opinion under the Freedom of Information Law concerning the responsibility of a village to disclose
certain records.

According to your letter, the village has received a request for "an agreement to settle a
disciplinary case it brought against an employee for on-the-job misconduct", as well as other
"available documents" pertaining the proceedings against the employee. You made specific
reference to paragraph 16 of the agreement, which states that:

"The parties further agree not to make any public comments about the
terms of this Agreement, and pledge to use their best efforts to
maintain the confidentiality of this settlement, to the extent
permitted by law. It is understood that if this Agreement must be
disclosed pursuant to a valid request filed under the Freedom of
Information Law, such Agreement will be released, and the parties
may comment upon the Agreement in connection with such release
at such time, provided that any such comment shall not disparage the
other party or this Agreement in any manner" (emphasis added).

You added that the agreement requires the employee to retire by a specified date, and that the village
agreed to pay the employee certain sums of money and to withdraw the disciplinary charges. The
employee did not admit his guilt in relation to the charges.

You have asked whether the village must disclose the settlement agreement, notwithstanding
paragraph 16, the disciplinary charges "or other pre-settlement documents, such as correspondence
suspending the employee or transmitting the charges." You also indicated that while the employee
was suspended pending a hearing on the charges, he filed for unemployment insurance benefits. A
hearing was held, and it was determined that the employee "committed misconduct, making him
ineligible for unemployment benefits." You asked whether the decision of the Administrative Law
Judge is accessible.

In this regard, I offer the following comments.

First, paragraph 16 in my view has no impact on the village's duty to disclose under the
Freedom of Information Law. From my perspective, it is likely that the parties could validly agree
not to speak about the settlement. However, the Freedom of Information Law pertains to records,
not to speech. In a decision that is somewhat analogous to the matter that you described, Paul
Smith's College of Arts and Sciences v. Cuomo, it was stated that:

"Plaintiff was the subject of a complaint made by a former employee
who alleged that he was a victim of age discrimination. Prior to a
scheduled hearing and with the assistance of an employee of
defendant State Division of Human Rights (hereinafter SDHR),
plaintiff entered into a stipulation of settlement with the complaining
employee. Plaintiff's stated purpose for settling was to eliminate any
negative publicity resulting from a public hearing on the allegations.
The order after stipulation signed by defendant Commissioner of
Human Rights on August 23, 1989 provided for absolute
confidentiality except for enforcement purposes. The order also
provided for the withdrawal of the charges and discontinuance of the
administrative proceeding. Plaintiff did not admit to a Human Rights
violation. On October 27, 1989, SDHR issued a press release
detailing the allegations, disclosing that the matter hade been settled
and set forth certain parts of the settlement terms" [589 NYS2d
106,107, 186 AD2d 888 (1992)].

The Appellate Division determined that the issuance of the press release "was both arbitrary and
capricious and an abuse of discretion" (id.), but it also found that the stipulation of settlement was
subject to rights of access conferred by the Freedom of Information Law.

I note that it has been held in variety of circumstances that a promise or assertion of
confidentiality cannot be upheld, unless a statute specifically confers confidentiality. In Gannett
News Service v. Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)],
a state agency guaranteed confidentiality to school districts participating in a statistical survey
concerning drug abuse. The court determined that the promise of confidentiality could not be
sustained, and that the records were available, for none of the grounds for denial appearing in the
Freedom of Information Law could justifiably be asserted. In a decision rendered by the Court of
Appeals, it was held that a state agency's:

"long-standing promise of confidentiality to the intervenors is
irrelevant to whether the requested documents fit within the
Legislature's definition of 'record' under FOIL. The definition does
not exclude or make any reference to information labeled as
'confidential' by the agency; confidentiality is relevant only when
determining whether the record or a portion of it is exempt..."
[Washington Post v. Insurance Department, 61 NY 2d 557, 565
(1984)].

Second, I believe that the settlement agreement 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.

There is nothing in the Freedom of Information Law that deals specifically with personnel
records or personnel files. Further, the nature and content of so-called personnel files may differ
from one agency to another, and from one employee to another. In any case, neither the
characterization of documents as "personnel records" nor their placement in personnel files would
necessarily render those documents "confidential" or deniable under the Freedom of Information Law
(see Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980).
On the contrary, the contents of those documents serve as the relevant factors in determining the
extent to which they are available or deniable under the Freedom of Information Law. Two of the
grounds for denial are relevant to an analysis of the matter; neither, however, would in my view
serve to justify a denial of access.

Perhaps of greatest significance is §87(2)(b), which permits an agency to withhold records
to the extent that disclosure would constitute "an unwarranted invasion of personal privacy". In
addition, §89(2)(b) provides a series of examples of unwarranted invasions 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 that public officers and employees are required to be more
accountable than others. 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, supra; 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 other ground for denial of significance, §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. Insofar
as a request involves a final agency determination, I believe that such a determination must be
disclosed, again, unless a different ground for denial could be asserted.

In Geneva Printing, supra, a public employee charged with misconduct and in the process of
an arbitration hearing engaged in a settlement agreement with a municipality. One aspect of the
settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding
the agreement of confidentiality, which apparently was based on an assertion that "the public interest
is benefited by maintaining harmonious relationships between government and its employees", the
court found that no ground for denial could justifiably be cited to withhold the agreement. In so
holding, the court cited a decision rendered by the Court of Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d 527), the Court of
Appeals in concluding that a provision in a collective bargaining
agreement which bargained away the board of education's right to
inspect personnel files was unenforceable as contrary to statutes and
public policy stated: 'Boards of education are but representatives of
the public interest and the public interest must, certainly at times,
bind these representatives and limit or restrict their power to, in turn,
bind the public which they represent. (at p. 531).

"A similar restriction on the power of the representatives for the
Village of Lyons to compromise the public right to inspect public
records operates in this instance.

"The agreement to conceal the terms of this settlement is contrary to
the FOIL unless there is a specific exemption from disclosure.
Without one, the agreement is invalid insofar as restricting the right
of the public to access."

It was also found that the record indicating the terms of the settlement constituted a final agency
determination available under the Law. The decision states that:

"It is the terms of the settlement, not just a notation that a settlement
resulted, which comprise the final determination of the matter. The
public is entitled to know what penalty, if any, the employee
suffered...The instant records are the decision or final determination
of the village, albeit arrived at by settlement..."

Perhaps most pertinent to the instant situation is a decision rendered approximately a month
ago in which the subject of a settlement agreement with a town that included a confidentiality clause
brought suit against the town for disclosing the agreement under the Freedom of Information Law.
In considering the matter, the court stated that:

"Plaintiff argues that provisions of FOIL did not mandate disclosure
in this instance. However, it is clear that any attempt to conceal the
financial terms of this expenditure would violate the Legislative
declaration of §84 of the Public Officer's Law, as it would conceal
access to information regarding expenditure of public monies.

"Although exceptions to disclosure are provided in §§87 and 89,
plaintiff has not met his burden of demonstrating that the financial
provisions of this agreement fit within one of these statutory
exceptions (see Matter of Washington Post v New York State Ins.
Dept. 61 NY2d 557, 566). While partially recognized in Matter of
LaRocca v Bd. of Education, 220 AD2d 424, those narrowly defined
exceptions are not relevant to defendants' disclosure of the terms of
a financial settlement (see Matter of Western Suffolk BOCES v Bay
Shore Union Free School District, ___AD2d___ 672 NYS2d 776).
There is no question that defendants lacked the authority to subvert
FOIL by exempting information from the enactment by simply
promising confidentiality (Matter of Washington Post, supra p567).

"Therefore, this Court finds that the disclosure made by the defendant
Supervisor was ‘required by law', whether or not the contract so
provided" (Hansen v. Town of Wallkill, Supreme Court, Orange
County, December 9, 1998).

While I believe that the settlement agreement must be disclosed for the reasons discussed in
the preceding paragraphs, the charges, which were never proven, could, in my view, be withheld.
When allegations or charges of misconduct have not yet been determined or did not result in a
finding of misconduct, 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)]. Similarly, to the extent that charges
are dismissed or allegations are found to be without merit, I believe that they may be withheld.

The other correspondence to which you referred would appear to consist of intra-agency
material. To the extent that it is predecisional and does not contain the kinds of information required
to be disclosed under subparagraphs (i), (ii) or (iii) of §87(2)(g), or if disclosure would constitute an
unwarranted invasion of privacy, I believe that it may be withheld.

With respect to records reflective of a suspension, such records must in my view be
disclosed, in this instance, for either of two reasons.

Although a suspension in some situations might not reflect an agency's final determination
of a matter, it would represent factual information that must be made available under §87(2)(g)(i).
Further, with respect to privacy, it has been established that attendance records of public employees
must be disclosed. In Capital Newspapers v. Burns [109 AD 2d 292, aff'd 67 NY 2d 562 (1986)],
it was held that records indicating days and dates of sick leave claimed by a particular police officer
must be made available. On the basis of that decision, which was reached unanimously by both the
Appellate Division and the Court of Appeals, it is clear in my opinion that time sheets, attendance
records and similar documentation, including those elements that indicate the reasons for absences,
must be disclosed. A member of the public could request and obtain the attendance records of any
public employee and ascertain from those records the identity of a person who was suspended.

Perhaps more importantly, the suspension would apparently have been referenced in the
decision of the Administrative Law Judge who determined eligibility for unemployment insurance
benefits, and that decision, in my view, would clearly be public. In Herald Company v. Weisenberg
[59 NY2d 378 (1983)], the Court of Appeals held that "an unemployment insurance hearing is
presumed to open, and may not be closed to the public unless there is demonstrated a compelling
reason for closure and only after the affected members of the news media are given an opportunity
to be heard" (id. at 380). Further, the Court based its holding on "the strong public policy in this
State of public access to judicial and administrative proceedings", which "has found expression
through legislative language in a variety of contexts", one of which included a citation of the
Freedom of Information Law (id., 381).

Because unemployment insurance hearings are presumptively open to the public, not only
are transcripts of those portions of the hearings that are open accessible under the Freedom of
Information Law; the decisions are also available, and based on a telephone contact, it is the routine
practice of the Unemployment Insurance Appeal Board to disclose them.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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