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July 14, 1999

 

 

Dear

As you are aware, I have received a variety of materials concerning a finding by the
Committee on Professional Standards of the Third Judicial Department that you "failed to
personally review documents compiled by another in order to respond to a FOIL request",
and that "[t]he steps taken by you were not adequate under the circumstances considering the
sensitive nature of the information which could have been released." The finding is part of
a "formal letter of caution" issued pursuant to the rules of the Appellate Division, Third
Department, and "constitutes an official finding of misconduct." In conjunction with your
right to seek reconsideration of the determination, you have sought my views on the matter.

By way of background, an inmate at the Clinton Correctional Facility submitted a
request to an agency pursuant to the Freedom of Information Law for copies of records
"which would show or tend to show the full names, titles, and salaries of each and every
employee of your agency who is assigned to work at the Clinton Correctional Facility", as
well as "any licenses, certificates, registrations and/or other similar documents relating to each
of the employees employed at the Clinton Correctional Facility." When your opinion was
sought concerning the duty to disclose the information sought, you advised, and properly so
in my view, that it must be disclosed. However, soon thereafter, you were informed by a staff
person at the facility that "some of the licenses and certificates (i.e., physician, nurse, social
worker, psychologist) had the home addresses of the registrants", and it was suggested that
disclosure of the home addresses could "endanger the life and safety of staff." Since you were
unaware that the materials included home addresses, you asked that they be sent to you for
review prior to any disclosure. Later, a representative of a public employee union contacted
you and suggested that disclosure of the information in question, particularly home addresses,
would constitute "a breach of confidentiality." Following your examination of the records,
you "preliminarily determined that it was appropriate to resolve any doubts in favor of
denying access to certain information which could be used to identify staff (i.e., names, home
addresses, certificate/license numbers, etc.)..." You then wrote to the applicant that "titles
held by unnamed individuals" and an "indication of the licensure held and educational and
professional training received by these unidentified persons" would be forwarded to him upon
payment of the requisite fee. The applicant has apparently never responded, and no disclosure
of any of the materials has been made.

From my perspective, much of the information sought would be accessible under the
Freedom of Information Law to any person, and disclosure would not have represented a
"breach of confidentiality", for there would have been no statutory bar to disclosure.
Moreover, based upon the description of the records given to you, there would have been no
need to personally inspect the records. Only after additional information was supplied would
there have been any indication that the records would not be accessible in their entirety. In
this regard, I offer the following comments.

First, 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.

It is emphasized that the courts have consistently interpreted the Freedom of
Information Law in a manner that fosters maximum access. As stated by the Court of
Appeals twenty years ago:

"To be sure, the balance is presumptively struck in favor of
disclosure, but in eight specific, narrowly constructed
instances where the governmental agency convincingly
demonstrates its need, disclosure will not be ordered (Public
Officers Law, section 87, subd 2). Thus, the agency does not
have carte blanche to withhold any information it pleases.
Rather, it is required to articulate particularized and specific
justification and, if necessary, submit the requested materials
to the courts for in camera inspection, to exempt its records
from disclosure (see Church of Scientology of N.Y. v. State
of New York, 46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of one of these
statutory exemptions may disclosure be withheld" [Fink v.
Lefkowitz, 47 NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide
maximum access, and the agency seeking to prevent disclosure
carries the burden of demonstrating that the requested material
falls squarely within a FOIL exemption by articulating a
particularized and specific justification for denying access"
[Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see
also, Farbman & Sons v. New York City, 62 NY 2d 75, 80
(1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

As a general matter, when records are accessible under the Freedom of Information
Law, it has been held that they should be made equally available to any person, regardless of
one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d
779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals has held
that:

"FOIL does not require that the party requesting records make
any showing of need, good faith or legitimate purpose; while
its purpose may be to shed light on government decision-
making, its ambit is not confined to records actually used in
the decision-making process. (Matter of Westchester
Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full
disclosure by public agencies is, under FOIL, a public right
and in the public interest, irrespective of the status or need of
the person making the request" [Farbman v. New York City
Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Unless there is a basis for withholding records in accordance with the grounds for denial
appearing in §87(2), the use of the records, and the status of the applicant and the intended
use of the records are generally irrelevant.

Second, in my opinion, an assertion or claim of confidentiality, unless it is based upon
a statute, is without legal substance. When confidentiality is conferred by a statute, an act of
the State Legislature or Congress, records fall outside the scope of rights of access pursuant
to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold
records that "are specifically exempted from disclosure by state or federal statute". If there
is no statute upon which an agency can rely to characterize records as "confidential" or
"exempted from disclosure", the records are subject to whatever rights of access exist under
the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington
Post v. Insurance Department, supra; Gannett News Service, Inc. v. State Office of
Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of
confidentiality without more, would not in my view serve to enable an agency to justify
withholding a record. In this instance, I am unaware of any statute that would render the
information in question, including home addresses, exempted from disclosure by statute.

In short, I do not believe that the home addresses could be characterized as
"confidential" or that there is any statute that would forbid an agency from disclosing the
home addresses of its employees.

The foregoing is not intended to suggest that an agency must disclose its employees'
home addresses. On the contrary, I believe that the home addresses may be withheld, but that
there is no legal obligation to do so. Section 89(7) of the Freedom of Information Law states
in relevant part that "Nothing in this article shall require the disclosure of the home address
of an officer or employee, former officer or employee, or of a retiree of a public employees'
retirement system..." Similarly, §87(3)(b) pertains to a requirement that each agency maintain
a payroll record that identifies every employee by name, public office address, title and salary.
The place of one's public employment is public; a home address need not be disclosed..

Third, the Freedom of Information Law is permissive. Although an agency may
withhold records in accordance with the grounds for denial appearing in §87(2), the Court
of Appeals has held that the agency is not obliged to do so and may choose to disclose. As
stated in a unanimous decision: "...while an agency is permitted to restrict access to those
records falling within the statutory exemptions, the language of the exemption provision
contains permissive rather than mandatory language, and it is within the agency's discretion
to disclose such records, with or without identifying details, if it so chooses" [Capital
Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. In Buffalo Teachers' Federation v. Board
of Education [156 AD2d 1027 (1990)], it was determined that an agency had the ability to
disclose the home addresses of its employees, even though it could have withheld them.
Again, unless a statute forbids disclosure, an agency is not obliged to withhold records, even
though it may have the authority to do so.

I point out that there are numerous situations in which home addresses are available
by statute. If a person is registered to vote, voter registration records must be disclosed to
any person, even though they include residents' addresses (see Election Law, §§3-220 and
5-602). Similarly, assessment rolls have long been available under the Real Property Tax
Law (see §516). They include the names of owners and the location of their property, which
in many instances involve peoples' names and home addresses. Section 400.00 of the Penal
Law specifies that names and addresses of those licensed to possess firearms are public. In
those cases, home addresses of members of the public, some of whom may be public
employees, are disclosed pursuant to statute.

Having contacted the Office of Counsel at the State Education Department, the
agency that licenses the employees who are the subjects of the records at issue, I was
informed that the address that appears on the licenses or similar documentation is
characterized as the "address of record." The address of record may be a home address, a
business address or even a post office box. Consequently, the address of record may be but
is not necessarily a residence address. I was also informed that the State Education
Department places names of licensees on the Internet with the town and state that appears
on the license in the "address of record."

In short, there are numerous opportunities for ascertaining either the residence
addresses or the municipality of residence of public employees, licensees, and members of the
public generally. In my opinion, those addresses could hardly be characterized as
"confidential."

It has consistently been advised that licenses and similar, related kinds of records are
available to the public, even though they identify particular individuals. From an historical
perspective, I believe that various activities are licensed due to some public interest in
ensuring that individuals or entities are qualified to engage in certain activities, such as
teaching, selling real estate, owning firearms, practicing law or medicine, or engaging in the
professions of the licensees to which reference was made in the materials that you forwarded.
Licenses and similar records are generally available, for they are intended to enable the public
to know that an individual has met appropriate requirements to be engaged in an activity that
is regulated by the state or in which the state has a significant interest.

As you may be aware, §87(2)(b) of the Freedom of Information Law enables agencies
to withhold records insofar as disclosure would constitute "an unwarranted invasion of
personal privacy. That standard in my opinion is flexible and agency officials must, in some
instances, make subjective judgments when issues of privacy arise. However, it is clear that
not every item within a record that identifies an individual may be withheld. Disclosure of
intimate details of peoples' lives, such as medical information, one's employment history and
the like, might, if disclosed, constitute an unwarranted invasion of personal privacy;
nevertheless, other types of personal information maintained by an agency, particularly those
types of information that are relevant to an agency's duties, would if disclosed often result in
a permissible rather than an unwarranted invasion of personal privacy.

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; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social
security numbers].

I note 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 recent 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."

Kwasnik was recently affirmed unanimously by the Appellate Division, Second Department
(NYLJ, June 21, 1999).

For the reasons described in the preceding paragraphs, I believe that much of the
information requested would be available as of right to any person, including an inmate.
While an agency has the authority to withhold home addresses of its public employees, it is
clear in my view that there is no prohibition against disclosure of those items, nor would
disclosure represent a "breach of confidentiality." As suggested earlier, based on the
description of the records given to you, there was no reason to believe that the records were
other than public and available to any person. In that circumstance, there would ordinarily
be no need for a personal review of records by you or others. Further, in my view, by
responding as you did upon receipt of the additional information given to you by staff and
ensuring that personal details would be deleted prior to any disclosure of the records, you
acted in a manner consistent with the requirements of the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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