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May 12, 1999

 

Mr. Ignazio Vito Cavalluzzi
39 Orchard Street
Mount Vernon, NY 10552

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. Cavalluzzi:

I have received your letter of April 19, as well as the correspondence attached to it.
In brief, beginning in December of 1998, you requested various records from the City of
Mount Vernon Board of Education relating to your position and its abolition. However, as
of the date of your letter to this office, you had received no response.

In this regard, I offer the following comments.

First, pursuant to the regulations promulgated by the Committee on Open
Government (21 NYCRR Part 1401), each agency is required to designate one or more
persons as "records access officer." The records access officer has the duty of coordinating
the agency's response to requests for records. While I believe that the person in receipt of
your requests should have responded in a manner consistent with the Freedom of Information
Law or forwarded the requests to the appropriate person, it is suggested that you renew your
request and direct it to the records access officer. It is also suggested that you contact the
District Clerk or the Superintendent in order to ascertain the identity of the person designated
as records access officer.

Second, 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, 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.

Since much of the documentation that you requested pertains to yourself, I note that
§87(2)(b) permits an agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy." Because you cannot invade your
own privacy, insofar as the records pertain to you, that provision would not serve as a basis
for a denial of access. The only other person who would apparently be identified in the
records, other than minutes of meetings, is an employee that you named. You requested
records relating to her hiring, her title and her salary.

Here I point out that §87(3)(b) of the Freedom of Information Law specifies that each
agency is required to maintain a payroll record that identifies every officer or employee by
name, public office address, title and salary. As such, the title and salary of the person named
would clearly be accessible under the law.

With respect to the other materials relating to that person, based on the judicial
interpretation of the Freedom of Information Law, 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 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; Seelig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of
social security numbers].

I note, too, 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 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 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)]."

The other provision of significance is §87(2)(g), which permits an agency to 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.

While the documentation at issue consists of "intra-agency material", much of it would
be factual in nature and be available, therefore, under §87(2)(g)(i); other elements of the
documentation would reflect an agency's policy (i.e., a job description) or a final agency
determination ( i.e., records indicating that a position was abolished or that a person was
hired). It would appear that the only aspects of the records that could be withheld under
§87(2)(g) would be predecisional materials consisting of advice, opinions, recommendations
and the like.

Lastly, minutes of meetings of public bodies are clearly available (see Open Meetings
Law, §106), and it has been held that tape recordings of open meetings are accessible under
the Freedom of Information Law ( see Zaleski v. Hicksville Union Free School District, Board
of Education of Hicksville Union Free School, Sup. Ct., Nassau Cty., NYLJ, Dec. 27, 1978).

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this opinion will be forwarded to School District officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm
cc: Board of Education
Superintendent of Schools