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July 21, 1999

 

Ms. Janet Axelrod
General Counsel
National Education Association
of New York
217 Lark Street
Albany, NY 12210

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. Axelrod:

I have received your letter of June 15. You have asked whether applications for
charter schools submitted to a board of education, the Board of Trustees of the State
University of New York (SUNY), or the Board of Regents pursuant to §2851 of the
Education Law are "recoverable under FOIL.".

From my perspective, with minor exceptions, the applications must be disclosed. In
this regard, I offer the following comments.

First, as you are aware, subdivision (3) of §2851 indicates that applications must
submitted to a "charter entity for approval." A "charter entity" is described in that provision
to include certain boards of education, the SUNY Board of Trustees and the Board of
Regents. Each of those entities in my view clearly falls within the coverage of the Freedom
of Information Law. That statute is applicable to agencies, and §86(3) defines the term
"agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one
or more municipalities thereof, except the judiciary or the state
legislature."

Since boards of education, SUNY and the Board of Regents are governmental entities
performing governmental functions for either public corporations or the State, they constitute
"agencies" required to comply with the Freedom of Information Law.
Second, that statute pertains to agency records, and §86(4) defines "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."

Based on the foregoing, when a charter entity receives documentation from an applicant, that
documentation, i.e., an application, would constitute a "record" that falls within the scope of
the Freedom of Information Law. Even if documentation is characterized as preliminary or
perhaps draft, as soon as it comes into the possession of an agency, it is a record subject to
rights of access conferred by the Freedom of Information Law.

And third, 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)].

Subdivision (2) of §2851 prescribes the information that must be included in an
application, and in most instances, none of the grounds for denial would, in my view, be
pertinent. The only aspects of the application that may contain information that might
justifiably be withheld are described in paragraphs (c), (m) and potentially (x) of subdivision
(2).

Paragraph (c) requires that an application include a "list of members of the initial
board of trustees" and "a description of the qualifications, terms and method of appointment
or election of trustees." Paragraph (m) requires the inclusion of "[i]dentification and
background information on all applicants and proposed members of the board of trustees."
Relevant to an analysis of rights of access is §87(2)(b), which authorizes an agency to
withhold records insofar as disclosure would constitute "an unwarranted invasion of personal
privacy." Additionally, §89(2)(b) provides a series of examples of unwarranted invasions of
personal privacy.

While the status of charter schools may be somewhat unclear (i.e., as to whether they
may be governmental, not-for-profit, or profit-making entities), I believe that the Legislature
clearly intended that they be accountable to the public in a manner analogous to public
schools that are unquestionably governmental in nature, for subdivision (1)(e) of §2854 of the
Education Law specifies that charter schools shall be subject to both the Freedom of
Information Law and the Open Meetings Law. As such, although there may be something
of an expectation of privacy in relation to the activities of those who serve or are employed
by entities that are not clearly governmental in nature, those associated with charter schools
are intended to comply with the same statutes requiring accountability and disclosure as those
statutes applicable to public officers and employees associated with public schools and school
districts.

In my opinion, the principles expressed in judicial interpretations of the Freedom of
Information Law concerning public officers and employees should generally be applicable to
information identifiable to individuals named in charter school applications. Based on those
decisions, 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 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 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 also 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).

In the context of a charter school application, I believe that the qualifications of
members of a board of trustees, i.e., those items indicating that they have met the criteria
necessary to carry out their duties, would be accessible. Similarly, reference to one's public
employment or membership on a governmental body would in my view be available. In
addition, 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.

Conversely, insofar as personal information contained in an application is not available
from another governmental source (i.e., a licensing agency) or is irrelevant to the performance
of one's duties, it might justifiably be withheld. Examples of items that might properly be
withheld are social security numbers, home addresses, marital status, and private employment
unrelated to one's duties on a board of trustees.

Paragraph (x) of §2851(2) involves the submission of "[a]ny other information
relevant to the issuance of a charter required by the charter entity." While that "other
information" would be presumptively available, it is possible, depending on its nature, that
portions might be withheld in accordance with §87(2) of the Freedom of Information Law.

In sum, for the reasons expressed above, charter school applications are "records" that
fall within the scope of the Freedom of Information Law when they come into the possession
of a charter entity that must be disclosed, except to the extent that disclosure would result in
an unwarranted invasion of personal privacy as discussed in the preceding commentary.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Kathy Ahearn, Counsel, State Education Department
Joyce Villa, Attorney-in-Charge, SUNY