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April 29, 1999

 

Mr. Warren D. Cuddeback
399 Galley Hill Road
Cuddeback, NY 12729

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. Cuddeback:

I have received your letter of March 30 concerning rights of access to a letter sent by
the Orange County Department of Personnel to the Supervisor of the Town of Deerpark
pertaining to the qualifications of a particular individual to serve as the Town's Chief of
Police.

The letter was the subject of an advisory opinion that I prepared at the request of the
Supervisor on February 26 in which it was advised that the letter, based on its specific
contents, should be disclosed. Notwithstanding that the opinion, the County denied your
request, citing §96 of the "Personal Privacy Protection Act" [sic]. In addition, it was
contended that my opinion "fails to take into consideration the express statutory exemption
for personnel records of a police officer under the Civil Rights Law, Section 50-a."

You have asked that I review the issue and indicate whether I continue to believe that
the record in question should be disclosed. I do.

First, the County's reliance on the Personal Privacy Protection Law is misplaced, for
that enactment is applicable only to state agencies. For purposes of that statute, §92(1)
defines the term "agency" to mean:

"any state board, bureau, committee, commission, council,
department, public authority, public benefit corporation,
division, office or any other governmental entity performing a
governmental or proprietary function for the state of New
York, except the judiciary or the state legislature or any unit
of local government and shall not include offices of district
attorneys."

Based on the foregoing, the Personal Privacy Protection Law excludes from its coverage "any
unit of local government", such as a county. Consequently, the Personal Privacy Protection
Law would not be applicable or serve as a barrier to disclosure of records maintained by a
unit of local government [see Seelig v. Sielaff, 201, AD2d 298 (1994)]. Further, for reasons
discussed in the opinion of February 26, I continue to believe that disclosure would constitute
a permissible rather than an unwarranted invasion of personal privacy. To reiterate, the
personal information contained in the letter consists largely of a recitation of positions
previously held by the individual in question and the periods of time that he held those
positions. Those kinds of items are in my view, clearly public.

Second, I am mindful of §50-a of the Civil Rights Law, which requires that an agency
keep confidential those personnel records pertaining to a police officer that are "used to
evaluate performance toward continued employment or promotion..." From my perspective,
there is nothing in the letter that involves an evaluation of performance. In a recent decision,
the Court of Appeals, the state's highest court, sustained a denial of access to reprimands of
police officers. However, the Court emphasized that:

"...when access to an officer's personnel records relevant to
promotion or continued employment is sought under FOIL,
nondisclosure will be limited to the extent reasonably
necessary to effectuate the purposes of Civil Rights Law § 50-
a - - to prevent the potential use of information in the records
in litigation to degrade, embarrass, harass or impeach the
integrity of the officer. We said as much in Matter of
Prisoners' Legal Services (supra), when after describing the
legislative purpose of section 50-a, we expressly stipulated
that ‘records having remote or not potential use, like those
sought in Capital Newspapers, fall outside the scope of the
statute' (73 NY2d, at 33 [emphasis supplied]). Thus, in
Capital Newspapers v Burns, we upheld FOIL disclosure of a
single police officer's record of absences from duty for a
specific month. By itself, the information was neutral and did
not contain any invidious implications capable facially of
harassment or degradation of the officer in a courtroom. The
remoteness of any potential use of that officer's attendance
record for abusive exploitation freed the courts from the
policy constraints of Civil Rights Law § 50-a, enabling
judicial enforcement of the FOIL legislative objectives in that
case" [Daily Gazette v. City of Schenectady, ___NY2d___,
April 6, 1999].

Because the contents of the letter do not evaluate performance, and because a recitations of
positions held is "neutral", §50-a of the Civil Rights Law would not in my opinion serve to
authorize the County to deny access to the letter.

For the reasons expressed above and in the earlier opinion, I believe that the letter of
your interest must be disclosed.
In an effort to enhance compliance with and understanding of applicable law, copies
of this response will be sent to County officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Richard B. Golden
J. Daniel Bloomer
Catherine O'Grady