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January 25, 1999

 

Ms. Deborah A. Taylor
Labor Relations Specialist
New York State United Teachers
12 Elm Street
Potsdam, NY 13676

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. Taylor:

I have received your letter of January 8, as well as the materials attached to it. You
have sought an opinion concerning a denial of access by the Malone Central School District
to a record requested by the Malone Federation of Teachers and by an employee of the
District.

According to your letter, the record sought is a "private investigation report" prepared
at the direction and expense of the District in the spring of 1994 by Brian McKee
Investigations. The report pertains to "the behavior of Board of Education member Patrick
R. White during a wrestling match he attended at a neighboring school district." The
employee who made the request sought the report under the Personal Privacy Protection Law
because he was interviewed as part of the investigation and believes that he has a right of
access to the record. The District denied access on the basis of paragraphs (b) and (c) of
§87(2) of the Freedom of Information Law.

In this regard, I offer the following comments.

First, the Personal Privacy Protection Law does not apply. That statute pertains only
to state agencies and specifically excludes units of local government, such as school districts,
from its coverage [see Personal Privacy Protection Law, §92(1) definition of "agency"].

Second, the correspondence indicates that the request was initially denied because the
report "is not part of our school district records..." From my perspective, if the record was
prepared for the District, it is a District record that falls within the scope of the Freedom of
Information Law, irrespective of its physical location. That statute pertains to agency
records, and a school district is clearly an "agency" as that term in defined in §86(3) of the
Freedom of Information Law. Section 86(4) defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by,
with or for an agency or the state legislature, in any physical
form whatsoever including, but not limited to, reports,
statements, examinations, memoranda, opinions, folders, files,
books, manuals, pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer tapes or discs,
rules, regulations or codes."

Since the report in question was commissioned by the District, even though it may have been
prepared by a private company, the report in my view clearly constitutes a "record" subject
to rights conferred by the Freedom of Information Law. Even if the report never came into
the physical custody of the School District, because it was produced for the District, I believe
that it is an agency record.

Third, with respect to rights of access, 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 the initial denial, it was contended that the report "is a confidential file between the
attorney and client." As I understand the matter, Brian McKee Investigations was not
retained as an attorney or to provide legal advice, but rather as an investigator. If that is so,
there would have been no attorney-client relationship, and the assertion of confidentiality on
that basis would have been misplaced.

The other ground for denial cited initially involves the protection of privacy. In that
response and in the appeal, it was found that disclosure would constitute "an unwarranted
invasion of personal privacy" in accordance with §87(2)(b). 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. Further, 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 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, according
to case law, 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)].

If there was no determination to the effect that the Board member engaged in
misconduct, I believe the denial based upon considerations of privacy would have been
consistent with law. Contrarily, insofar as a determination may have been made indicating
that the Board member engaged in misconduct, portions of the report reflective of that finding
and upon which the Board relied in reaching such a determination would likely be available.
In that event, however, if those portions of the report otherwise available include personally
identifiable details pertaining to others, such as students, witnesses, persons interviewed, etc.,
those details might justifiably be deleted to protect the privacy of those persons.

Lastly, the determination by the Superintendent also cited §87(2)(c), which enables
an agency to withhold records insofar as disclosure "would impair present or imminent
contract awards or collective bargaining negotiations." As I understand the matter, the
conduct of a member of a Board of Education at a wrestling match would have nothing to do
with the impairment of a contract or collective bargaining negotiations. If that is so,
§87(2)(c) would be irrelevant.

I hope that the foregoing serves to enhance your understanding of the Freedom of
Information Law and the Personal Privacy Protection Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Wayne C. Walbridge, Superintendent